Vol. 791 Monday No. 154 18 June 2018

PARLIAMENTARYDEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDEROFBUSINESS

Questions Hospices: Impact of NHS Pay Increases...... 1843 Home Office: Immigration ...... 1846 Private Burial Grounds...... 1848 Oil and Gas: UK Continental Shelf ...... 1850 European Union (Withdrawal) Bill Commons Reasons and Amendments ...... 1852 Lords wishing to be supplied with these Daily Reports should give notice to this effect to the Printed Paper Office. No proofs of Daily Reports are provided. Corrections for the bound volume which Lords wish to suggest to the report of their speeches should be clearly indicated in a copy of the Daily Report, which, with the column numbers concerned shown on the front cover, should be sent to the Editor of Debates, House of Lords, within 14 days of the date of the Daily Report. This issue of the Official Report is also available on the Internet at https://hansard.parliament.uk/lords/2018-06-18

The first time a Member speaks to a new piece of parliamentary business, the following abbreviations are used to show their party affiliation: Abbreviation Party/Group CB Cross Bench Con Conservative DUP Democratic Unionist Party GP Green Party Ind Lab Independent Labour Ind LD Independent Liberal Democrat Ind SD Independent Social Democrat Ind UU Independent Ulster Unionist Lab Labour LD Liberal Democrat LD Ind Liberal Democrat Independent Non-afl Non-affiliated PC Plaid Cymru UKIP UK Independence Party UUP Ulster Unionist Party

No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2018, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1843 Hospices: Impact of NHS Pay Increases[18 JUNE 2018] Hospices: Impact of NHS Pay Increases 1844

House of Lords Lord O’Shaughnessy: My noble friend gives a compelling reason. It is salutary to note that while Monday 18 June 2018 around half of deaths occur in hospital, most people— about 70% to 80%—would prefer to die at home or in 2.30 pm a hospice, which means that we need to have a thriving hospice sector. That is why it is important to make Prayers—read by the Lord Bishop of Lincoln. sure that it can compete on a level playing field for staff. Hospices: Impact of NHS Pay Increases Question Lord Blair of Boughton (CB): My Lords, I declare an interest as the chair of Helen & Douglas House, the first ever hospice in the world for children. When I last 2.36 pm spoke about this subject, the Minister invited me for a Asked by Lord Goddard of Stockport meeting. I am afraid that that meeting has never been proffered since, but I am delighted to tell the House ToaskHerMajesty’sGovernmentwhatrepresentations that the threat of a meeting with a Minister was they have received from the hospice movement about enough to get the clinical commissioning group to the impact of the proposed increases in NHS pay; start paying towards our hospice. However, I echo the and whether voluntary hospices will also be able to point made by the noble Lord, Lord Howard: that a access any additional funding being set aside to hospice that is struggling for staff, which is then presented fund the proposed NHS pay increases. with a pay deal only for the NHS, will struggle more. Can the Minister really consider the effect of this on TheParliamentaryUnder-Secretaryof State,Department hospices? of Health and Social Care (Lord O’Shaughnessy) (Con): My Lords, the Government received a number of Lord O’Shaughnessy: I am sorry that that meeting written representations from hospices regarding NHS has not taken place, and of course I am always glad to pay. The majority of NHS trade union members have meet the noble Lord to discuss this issue. I am glad now voted in favour of the Agenda for Change pay that the threat of a meeting has had the desired result, deal. This is welcome news that will help the NHS to and clearly, I agree with him that we have to make sure reward, recruit and retain the staff it needs. We are that hospices are equally attractive places to work as is nowconsideringtheimpactof theagreementonnon-NHS the NHS more broadly. organisations such as hospices, and will consider carefully the NHS Pay Review Body’s report before making any final decisions. Lord Judd (Lab): My Lords, I declare an interest as a vice-president of Hospice at Home in west Cumbria, where I live. This Question is very important. Does the Lord Goddard of Stockport (LD): I thank the Minister Minister not agree that hospices work best when they for his reply. Would he agree that, if the Government work very closely with the health service? That is provided direct ring-fenced funding to improve the certainly the case in west Cumbria. We have become pay and the terms and conditions of support workers part of the co-operative provision of services and care and all who deliver for the NHS, that would help to the community as a whole, but raising the necessary employers to address the significant recruitment and funds is a tremendous task. I hope that the Government retention problems and, ultimately, deliver a better will look very seriously at how hospices can be supported service, not putting at risk the vital hospice beds that in ensuring that the nurses working for them with so would be at risk in the voluntary and charity sector? much devotion are able to enjoy any improvements in the remuneration of nurses across the country. Lord O’Shaughnessy: The noble Lord is quite right; the Agenda for Change pay deal obviously applies to NHS staff who are on the Agenda for Change contract. Lord O’Shaughnessy: I can reassure the noble Lord The deal was agreed and happily has been approved that we are looking at that. Hospices work closely with by the unions, precisely to reward NHS staff for the local CCGs, which provide around 30% of their funding. fantastic work they do, and to make sure that we can We estimate that around 9,000 nurses work in hospices, recruit and retain more. Clearly, as we go forward, for and clearly we want to make sure that that number not non-NHS providers, be they in social care or hospices, only stays level but increases so that we can start to it is important that we do not cannibalise one workforce deliver the choice that we have committed to in palliative for the other. That is why we will look carefully at the care for people. conclusion of the pay review body’s report with regard to hospices. Lord Dobbs (Con): My Lords, the hospice movement helps over 200,000 patients every year, and they help Lord Howard of Lympne (Con): My Lords, I declare not only the patients who are at that point in their lives my interest as chair of Hospice UK. Would my noble but their relatives, leaving them with fantastic and friend agree that the greater the extent to which hospices positive experiences rather than the alternative which can discharge their functions, the greater the extent to is available. The hospice movement is largely funded which the pressure on NHS beds will be relieved? Is by the private sector— that not therefore a compelling reason for ensuring that a pay increase is met with regard to hospices? Noble Lords: Question! 1845 Hospices: Impact of NHS Pay Increases[LORDS] Home Office: Immigration 1846

Lord Dobbs: I will quickly get to that—I have a very Lord O’Shaughnessy: This is indeed an important important question. The hospice movement is largely day in the history of the NHS, and I am delighted that funded by the private sector—by public subscription, it is a Conservative Government who are making this not by central government. Can my noble friend use financial commitment. I look forward to having an his great skills, of which we are all admirers, to make opportunity to repeat my right honourable friend’s sure that nothing that the Government do undermines Statement tomorrow, when we will have more time to the hospice sector and that we find ever more imaginative discuss its benefits. and successful ways to support such a vital role? Home Office: Immigration Lord O’Shaughnessy: I will certainly do everything Question that I can. I agree that hospices are a fantastic example of the kind of mixed economy that this country does so well, with philanthropic and public contributions, 2.45 pm and we must make sure that both those continue. Asked by Lord Roberts of Llandudno To ask Her Majesty’s Government what steps Baroness Thornton (Lab): My Lords, I am sure that they are taking to improve performance on immigration the Minister will be aware that this affects not just matters by the Home Office. hospices, which of course are an integral and very important part of the health service, but the pay of those who work in all the charities and social enterprises The Minister of State, Home Office (Baroness Williams which contract with the NHS. I would like to broaden of Trafford) (Con): My Lords, the Home Secretary has the Question slightly from hospices and ask what the publicly stated that he is committed to a fair and Minister’s reaction is to the Royal College of Nursing, humane immigration system. Although the latest which has called on the Secretary of State to establish published data shows that the immigration system is a non-NHS national staff council to facilitate a more meeting published service standards on the majority integrated way of looking at the pay of all nurses and of high-volume routes and at the border,we are continually healthcare staff in health and social care settings seeking to improve our performance. We are reviewing across the piece. the operational assurance regime across the immigration system to ensure that it is effective and reflects best practice. Lord O’Shaughnessy: I was not aware of that proposal but I will certainly look at it and write to the noble Lord Roberts of Llandudno (LD): Is the Minister Baroness with our response. not ashamed that three young Eritrean men in their late teens who came to the UK committed suicide Baroness Brinton (LD): My Lords, it is not just because of our immigration procedures? Is she not hospices and social enterprises that are affected by the ashamed that 40% of immigration decisions made by differential in the proposed NHS scales; the existing the Home Office are overturned on appeal? Is it not framework in Her Majesty’s Prison and Probation time that this was looked at, possibly by an outside Service demands formal nursing qualifications but agency independent of government, to overhaul the there is no contractual obligation on private operators procedures and bring us an immigration system that is such as G4S, Serco and Sodexo to follow those grading fit for purpose? scales and there is already wide disparity. What will the Government do to ensure that HMPPS follows Baroness Williams of Trafford: The case raised by both the pay scales and the NHS scales? the noble Lord is obviously very sad, but he will understand that I cannot comment on individual cases, other than by saying that 94% of straightforward Lord O’Shaughnessy: It is important to reiterate asylum claims are processed within service standards. that, in looking at one of the consequences of the However,we are committed to reaching asylum decisions Agenda for Change pay deal, the Government have as quickly as we can, while ensuring that those often committed to look at the impact not just on hospices complex cases are given proper consideration. He but on staff who are not employed on Agenda for talked about appeals, and I do not disagree with him: Change NHS contracts and to make sure that they are we wish that the appeals rate was better. However, I properly rewarded for the work they do. am sure he understands that quite often information is brought at the last minute which enables an appeal to Lord Forsyth of Drumlean (Con): My Lords— be granted.

Noble Lords: Order! Baroness Lister of Burtersett (Lab): My Lords, given the support last week from around the House during the debate on a Motion on this, what steps are Lord Forsyth of Drumlean: Does my noble friend the Government now taking to ensure that no child not think that the £20 billion offered by the Prime who belongs in this country is dragged into the Minister for the health service is good news for the immigration control system because they cannot afford health service and for the hospice movement overall, the fee to register their entitlement to citizenship, and the first signs of a proper Brexit dividend? which the Home Secretary himself described as “huge”? 1847 Home Office: Immigration [18 JUNE 2018] Private Burial Grounds 1848

Baroness Williams of Trafford: I half expected to That reply indicates there must be a government list of see the noble Baroness at the debate last week, but I some sort of both third-world and developing countries know her absolute commitment to this. The Home from which it is deemed not acceptable to take doctors. Secretary has made it very clear that there will be a far There will be interest in which nations are included in more humane system in the Home Office. I know that the list of developing countries, in particular, from children who come here and who are under local which it is considered not acceptable by the Government authority care are treated as they would be if they to take doctors; and, not least, how many and which were citizens of this country. There is complexity in countries from the Indian subcontinent are on that this, obviously, and when a child turns 17 and a half, government list. Can the Minister make sure that the their case has to be looked at again. However, I cannot government list in question—in whatever form it exists give her any further update on fees for children. and to which reference on this issue was made by the Government last week—is made available to Members Lord Suri (Con): My Lords, I am pleased that the of this House? Home Office has made efforts to improve its performance in assessing claims for asylum based on religious persecution by developing a dedicated training model Baroness Williams of Trafford: I can answer the with the help of the APPG for International Freedom question about doctors from India because we issue a of Religion and Belief and the asylum advocacy group. huge number of visas to them. As to recruitment from To ensure that this knowledge is integrated into third-world countries—I did not answer the question departmental work, will my noble friend include this from my noble friend Lord Cormack—rather than training in the compulsory foundation training course guess at it I shall get back to the noble Lord on those provided to all Home Office caseworkers? countries, although I suspect that there is not such a list. Baroness Williams of Trafford: On a number of occasions over the past couple of weeks, I have described the types of decision-making in UKVI that we are Private Burial Grounds seeking to improve. That includes improving the training Question and mentoring programmes for new caseworkers, as well as the wider assurance process, which my noble 2.52 pm friend would expect us to do. The assurance process follows the three lines of defence and at each stage of Asked by Baroness Hussein-Ece an assessment there is scrutiny of the effectiveness of the decision-making process. To ask Her Majesty’s Government what plans they have to review legislation to bring private Baroness Hayman (CB): My Lords, last week’s burial grounds in line with cemeteries and burial announcement of the changes in the tier 2 visa regime grounds regulated by statute. for NHS staff was urgently necessary and much appreciated. Will the Minister now look at some of Baroness Hussein-Ece: I beg leave to ask the Question the bureaucratic processes of the Home Office which standing in my name on the Order Paper. In so doing, are still causing problems, particularly for general I declare an interest as a member of the Tottenham practitioners already working in this country, and Park cemetery charitable trust, which is run by families providing valuable services to patients, when their of the privately run cemetery where my own family continued service is at risk? Will she also take the members are buried. opportunity to confirm that the Department of Health and the NHS have a clear code of conduct on international recruitment to prevent unethical recruitment from The Advocate-General for Scotland (Lord Keen of Elie) developing countries, a concern which has been raised (Con): My Lords, the Government have agreed that in the House? the Law Commission should include a project aimed at streamlining and modernising the law governing the Baroness Williams of Trafford: I thank the noble disposal of human remains in its current programme Baroness for that question. In and of itself, the fact of law reform. Further details of the project and its that doctors and nurses have been taken out of the cap start date will be announced by the Law Commission. will improve the bureaucratic processes and help decisions to be made more quickly. As to those doctors and Baroness Hussein-Ece: Is the Minister aware that nurses who are not in the occupation shortage list, the privately run burial grounds remain unregulated in sponsor still has to go through the resident labour law and are only loosely governed by guidelines? Is he market test. I expect this to go more smoothly and to further aware that they are often left to unscrupulous free up the numbers within the cap for other occupations. owners, as I have discovered in my own case, with no Lord Rosser (Lab): In response to a question from requirements for a licence or any maintenance, and my noble friend Lord Davies of Stamford about tier 2 that there is evidence of unlawful burials, reburials, visas and recruiting medical professionals from overseas, exhumations and, in this instance, a Victorian listed the Government said: chapel left to fall into ruin? The local authority, the “It is appropriate to take doctors only from countries that police or any other body have little power of enforcement. have their own very effective medical systems. To take them from Will the Government take action to ensure that these third-world and developing countries is not acceptable”.—[Official burial grounds are regulated by statute, as is the case Report, 12/6/18; col. 1575.] in Scotland, and end this scandal? 1849 Private Burial Grounds[LORDS] Oil and Gas: UK Continental Shelf 1850

Lord Keen of Elie: My Lords, I entirely accept the Lord Wallace of Saltaire (LD): My Lords, can the noble Baroness’s observation on the limited regulation Minister tell us when last there was a prosecution of private burial grounds in England. That is why we under the section he quoted from the 1857 Act? have agreed that the Law Commission should have a project aimed at addressing this matter. The present Lord Keen of Elie: As far as I am concerned, my regulation, such as it is, goes back to a series of Lords, it is not within my living memory. statutes between 1852 and 1857 and is of limited utility today. The London Borough of Enfield has Lord Selkirk of Douglas (Con): Does the Minister acted on health and safety concerns reported at the accept that in the past I have had a particular interest cemetery referred to by the noble Baroness, and following in this because one of my ancestors was buried in an an inspection by council inspectors, a temporary closure Egyptian sarcophagus? When efforts were made by notice was placed on the site so that necessary repairs respected members of the public to recover the could be carried out. sarcophagus, it could not be found. Perhaps I may say that where private sector measures impact on the Lord Beecham (Lab): My Lords, what is the current public sector, it can often give rise to offence if it position regarding the policy of the north London means interfering with other graves. coroner, Mary Hassell, of refusing to facilitate prompt funerals in accordance with Jewish and Muslim practice, Lord Keen of Elie: I am obliged to my noble friend following the High Court ruling that her policy is for his question. I am not aware of the present whereabouts discriminatory and unlawful? I ought to declare a of the sarcophagus in question. potential posthumous interest.

Lord Keen of Elie: I deeply regret that the noble Oil and Gas: UK Continental Shelf Lord’s interest is posthumous. I am not in a position Question to answer the specific point raised by the noble Lord, but I will write to him and place a copy of the letter in 2.58 pm the Library. Asked by Lord Bruce of Bennachie Lord Thomas of Gresford (LD): My Lords, what is To ask Her Majesty’s Government what steps the policy of the Government in issuing licences under they will take to promote new exploration and these Victorian burial Acts which permit the digging enhanced recovery of oil and gas from the United up of bodies in order to hold new burials? For how Kingdom’s continental shelf. long must a person be buried before his remains are exhumed? How many licences have been issued, and TheParliamentaryUnder-Secretaryof State,Department have there been any prosecutions? for Business, Energy and Industrial Strategy (Lord Henley) (Con): My Lords, the Maximising Economic Recovery Lord Keen of Elie: My Lords, as regards private of UK Petroleum strategy sets out the steps that the burial grounds, the removal of a body from a burial industry and the Oil and Gas Authority must take to ground would be an offence pursuant to Section 25(1) securethatthemaximumvalueof economicallyrecoverable of the Burial Act 1857, unless there was a statutory oil and gas is recovered from the strata beneath UK consent for such removal. waters. Most recently, the Government have provided £45 million for seismic surveys in underdeveloped areas, Lord Cormack (Con): My Lords, the noble Baroness and data from those will support the forthcoming drew attention to a particularly disturbing example, 31st offshore licensing round. but can my noble and learned friend tell the House how many private burial grounds there are in this Lord Bruce of Bennachie (LD): I thank the Minister country and whether he has reason to suppose that the for that reply. As noble Lords will be aware, the circumstances that she described are replicated elsewhere? industry has had a pretty traumatic two or three years, but nevertheless it accounts for hundreds of thousands of jobs and billions of pounds of benefit to the Lord Keen of Elie: My Lords, I am not in a position balance of payments. However, not enough exploration, to give even an estimate of the number of private development and enhanced recovery investment is taking burial grounds in the country at present, but I will place. Will the Government ensure that there are sufficient make inquiries as to whether those figures are available incentives, not subsidies, to make this happen rather to the Government. In the event that they are, I than just encourage it to do so? We should recognise undertake to write to my noble friend and place a copy that if we do not look, we do not find, and we cannot of the letter in the Library. produce.

Lord Adonis (Lab): My Lords, does the noble and Lord Henley: I agree with the noble Lord that the learned Lord know whether Karl Marx is public or industry has had a pretty traumatic time but I think private property? things are picking up. As he said, this is very important for energy security, jobs, the economy and—dare I say Lord Keen of Elie: My understanding is that there is it—the Exchequer. As I said in my original Answer, we no right of property in a body. are providing funds for seismic surveys to help in the 1851 Oil and Gas: UK Continental Shelf[18 JUNE 2018] European Union (Withdrawal) Bill 1852 next round. As the noble Lord will be aware, some Lord Henley: As I understand it, although I will no 61 companies got licences in the previous round, with doubt have to write in greater detail to the noble Lord, the potential to produce some 320 million barrels of removing the platforms is a matter for those who put oil equivalent. I hope something similar or better will them in place. When we talk about jobs and available come from the next round. exploration jobs, it is worth pointing out that there will be jobs in decommissioning and removing those platforms in due course, which will make use of the Lord West of Spithead (Lab): My Lords, the Minister expertise in north-eastern Scotland that put the platforms will be aware that oil and gas platforms on the continental in and operated them. shelf, undersea cables and fisheries are all part of what was once called the “offshore tapestry”, with a small fleet of ships to look after that tapestry. We no longer Lord Krebs (CB): My Lords, what is the Government’s have that; post Brexit, there may be some issues. Does estimate of the length of time for which we can the Minister not believe that we should perhaps look continue to burn fossil fuels while meeting our legally at investing in more ships to look after that highly binding carbon reduction commitments, as agreed up valuable offshore tapestry? to the fifth carbon budget and beyond?

Lord Henley: The noble Lord makes a very important Lord Henley: I am not sure I can give the noble point, which I will certainly pass on to my colleagues Lord those figures but I can assure him that there are in other departments. opportunities to continue to meet our obligations in that respect, particularly by making use of shale gas exploration if we move onshore. We certainly reckon Lord Goddard of Stockport (LD): My Lords, I draw that current production represents some 65 % of UK attention to my interests in the register; I am a vice- oil demand and 50% of UK gas demand, but there is chairman of the All-Party Parliamentary Group on much more to be found. the British Offshore Oil and Gas Industry. Does the Minister agree that one way to enhance the recovery of Baroness Deech (CB): My Lords, can the Minister oil and gas from the United Kingdom continental explain what plans there might be to exploit the continental shelf, increase tax revenues and create valuable jobs in shelf around the Falkland Islands and whether there the industry—which has lost 150,000 jobs since 2014— are any issues relating to the legal position of that would be to focus simply on extended production of shelf? late-life fields and promote early development of known proven resources? Lord Henley: The noble Baroness is moving on to a different continental shelf and rather a different question Lord Henley: The noble Lord is correct: we should —one that I do not think I am qualified to answer at do that. As his noble friend said, we should also this stage. I will no doubt be prepared to write to the continue with explorations. There is much that we can noble Baroness. do, that the Government are doing and that the industry is doing. European Union (Withdrawal) Bill Commons Reasons and Amendments Baroness Jones of Moulsecoomb (GP): My Lords, is the Minister aware of the carbon bubble—the possibility that the bottom could fall out of the market in oil and 3.04 pm gas and general fossil fuel investment? Will the Government therefore give some advice on these risks Motion A to anyone who would like to look further at oil and gas? I raised this with the Bank of England a few years Moved by Lord Callanan ago and it has since said some quite enlightened That this House do not insist on its Amendments 1 things. and 2 and do agree with the Commons in their Amendments 1A and 1B in lieu. Lord Henley: The noble Baroness makes a point but 1A: Page 9, line 21, at end insert the following new Clause— it is important that we continue to look at all available “Customs arrangement as part of the framework for the future resources. The noble Baroness knows we are moving relationship towards a low-carbon economy but we also want a (1) A Minister of the Crown must lay before each House of balanced energy mix. It is important that we make use Parliament a statement in writing outlining the steps taken by Her in the medium—and possibly long—term of the fossil Majesty’s Government, in negotiations under Article 50(2) of the fuels that we have. Treaty on European Union, to seek to negotiate an agreement, as part of the framework for the United Kingdom’s future relationship with the EU, for the United Kingdom to participate in a customs Lord Berkeley (Lab): My Lords, who is responsible arrangement with the EU. for removing the redundant platforms in the North (2) The statement under subsection (1) must be laid before Sea and elsewhere? I believe they are all privately both Houses of Parliament before the end of 31 October 2018.” owned. What happens if the company no longer exists? 1B: Page 15, line 13, at end insert— Who is responsible for putting the seabed and everything “( ) section (Customs arrangement as part of the framework for else back to what it was originally? the future relationship),”. 1853 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1854

The Minister of State, Department for Exiting the enhanced protections for EU-derived protections the European Union (Lord Callanan) (Con): My Lords, the Government have since made further concessions, or, issue of continued participation in a customs union in the case of sifting, reinstated earlier amendments. with the EU was debated at length in our House. It has Five have been replaced with amendments in lieu. We now been debated twice in the House of Commons. will consider these today, including the one we are Most recently, the other place chose to reject those talking about now on the customs union and the amendments put forward by the noble Lord, Lord publicationof primarylegislationtoenforceenvironmental Kerr. Instead, it chose to accept an amendment tabled protections. in lieu by my right honourable friend Sir Oliver Letwin, We are grateful to the Government for their to which this House is now invited to agree. consideration and acceptance of so many of the points My right honourable and learned friend the Solicitor- raised in your Lordships’ House. Even before the Bill General set out why the Government were unable to returned to the other place, significant changes were support Lords Amendments 1 and 2 and I do not made on a range of issues, including removing the intend to repeat those arguments at length. I will power to levy taxes or establish new public authorities simply reiterate that the UK, in its entirety, is leaving by statutory instrument, which is particularly important the customs union. We will seek a new customs for the new environmental enforcement body; additional arrangement with the EU that allows us to trade explanatory statements and reports to Parliament; the goods and services as frictionlessly as possible with the introduction of sunset clauses on some issues; the EU, frees us to strike trade deals around the world, prevention of the repeal or amendment of devolution and avoids any return to a hard border between Northern clauses by secondary legislation and significant Ireland and Ireland. amendments in your Lordships’ House on devolution The amendment sent to us from the other place provisions; and clearer guidance for courts and tribunals ensures that Parliament is informed, through a Statement relating to future decisions of the CJEU. Importantly, before both Houses provided by 31 October 2018, of we have seen the removal of a clause that I had never the steps we have taken to seek to negotiate an agreement seen before in legislation; that is, one giving a Minister for the United Kingdom to participate in a customs the ability to amend the Bill via an SI. That has gone. arrangement with the EU. The Government believe Despite disappointment at the rejection of some that this alternative to the amendment tabled by the Lords amendments, this legislation is better for the noble Lord, Lord Kerr, provides the right balance work that we have undertaken. We have not exceeded between ensuring Parliament is informed of the steps our defined and limited role, but we have used our the Government are taking to secure a future customs remit to provide for greater consideration, further relationship, and ensuring that we follow through on reflection and meaningful changes. As the Leader of the objective of delivering the referendum result by the House has said previously, reinforced by Ministers leaving the EU and, therefore, also leaving the customs in the other place, there is no legislation that does not union. benefit from scrutiny in your Lordships’ House. I therefore hope noble Lords will be content to We understand that in a democracy this can be accept the amendments from the House of Commons both an asset and, at times, a source of frustration to this afternoon. I beg to move. government. Canadians describe their second Chamber as a Chamber of sober second thought—a further Baroness Smith of Basildon (Lab): My Lords, this is opportunity to think things through and fine-tune the first of the Motions before us today. In addressing legislation. That makes the outbursts of some pro-Brexit it, I will briefly reflect on the role that your Lordships’ MPs all the more ridiculous. As we discuss these final House played in consideration of this Bill, and, for the amendments from the House of Commons, we have avoidance of any doubt, our approach to today’s seen a fair bit of sabre-rattling from some of the most business. enthusiastic Brexiteers and supporters. Inaccurate and misleading press headlines such as “Enemies of the Despite attracting perhaps a little more excitement, People” and “Saboteurs” may add excitement and this is the same procedure that we have for every drama, but they do nothing to improve the quality of legislative Bill that comes before your Lordships’ House. debate or journalistic integrity. I have said before that the process of Brexit cannot be left to those who have no doubt. It is only through We have also heard calls for this House to be consideration and challenge that we get better, if not abolished, to be replaced with a committee of experts the best, outcomes for any legislation. This Bill came or an elected House. I know that many hold honourable to us deeply flawed and divisive. Together as a House, and genuine positions on different kinds of reform, we approached it thoughtfully and diligently. We have but to base a case for fundamental change to and had some long days and some long nights in Committee abolition of the current system on disagreement on a and on Report. We are grateful to those Government Bill shows poor judgment. In response to proposals Ministers across departments who have been willing for an elected House or House of experts, I suggest to engage on some of the less controversial but equally that such a House might not be quite so compliant in important issues. accepting the primacy of the House of Commons. Of around 200 amendments passed, 15 did not Today, our role is very clear. This House does not enjoy the full or initial support of the Government. Of and should not engage in ping-pong lightly or without these, one was totally accepted on agencies and another thought. The process of ping-pong is not to challenge largely accepted, with minor changes, on Northern the elected House, but to provide an opportunity. Ireland. Eight were rejected, although on some of these Where matters are clearly and obviously unresolved in 1855 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1856 the House of Commons, that is where they should be It is perhaps unsurprising that all sides of the Conservative dealt with. The reported disagreement since Friday Party could agree with this, as it covers every conceivable between the Government and their own MPs is not post-Brexit eventuality: unless we cease trading with one we should seek to intervene in, other than to the EU completely, which as far as I am aware no provide an opportunity for MPs’ consideration, and it noble Lord on the other side of the House is prepared can be resolved only by those elected to the House of to contemplate, there will have to be some agreement Commons. over what happens when goods pass the border. The amendment obviously goes nowhere near the amendment Lords Amendments 1 and 2 on a customs union which we passed in your Lordships’ House, but in this have been returned to this House with, in effect, just case ping-pong is not the last word on the issue: it will one amendment, changing “customs union”to “customs be debated in the Trade Bill when it comes out of arrangement”. This is unnecessary, but I understand hibernation in the Commons. It seems inevitable that why the Government have done it. It is because the attempts will be made there to amend that Bill to Government do not yet know, even today, what they provide for continued membership of the customs want. Currently, they have two work streams: a customs union. Indeed, Commons Amendment 25D on Northern partnership and maximum facilitation. However, when Ireland, which we will be discussing later today, paves the Dutch Government are advising their manufacturing the way for membership of the customs union by industry not to buy car components from the UK ruling out any checks or controls at the Northern because our future customs relationship with the EU Ireland border with the Republic. Of course, the only is unclear, we know that there is a problem that needs way to avoid checks or controls is to be part of a to be addressed urgently. As a result of the amendment customs union. As with so many Brexit-related issues, from your Lordships’ House, the Government are now this one has simply been kicked down the road, but at committed to return to Parliament in just over four some stage in the reasonably near future it will have to months, by the end of October this year, with a be decisively addressed. It is clear, however, that today Written Statement on what they have done and how is not the day for doing so. they will proceed. I do not now feel that this is an issue that we should return to the other place. Lord Grocott (Lab): My Lords, I will speak very Lord Newby (LD): My Lords, I associate myself briefly because, like everyone else, I want to watch a with much of what the noble Baroness has said about football game later this evening. I hope I am not alone the role of your Lordships’ House. The role played in the House in saying that, while it may be true that by the Lords on this Bill has been completely in line we would stand a greater chance against Brazil and with constitutional precedent. We indeed defeated others if we joined a European football team and the Government 15 times, but the Government used abandoned the England one, I would not be in favour the Lords stages of the Bill to introduce more than of that course of action. The reason I want to speak 150 amendments of their own, including extremely very briefly was hearing the noble Lord, Lord Newby, important ones on devolution. That is because they suggest that everyone needed a lecture on the recognised that your Lordships’ House was indeed the constitution—I am certainly not averse to that—and, place in which the Bill could be improved. in particular, a lecture on the use of ping-pong. He also suggested that this Bill is like any other Bill and is Of the 15 amendments we passed, as the noble being treated in exactly the same way: it is at that point Baroness said, the Government have accepted almost that I have to disagree with him, on at least two half, either in whole or in part. This is not, incidentally, grounds. something that one would gather by reading the popular The first is that it is certainly not like any other Bill press. The Government have also chosen to use this in terms of the amount of scrutiny it has been given; stage of the Bill to introduce an amendment of their 12 days in Committee, six days on Report and several own in an attempt, possibly unsuccessful, to resolve nights, as my noble friend the Leader of the Opposition the “meaningful vote” issue. They clearly recognise maintained. It has had extensive scrutiny, entirely in that the Lords has a vital part to play in improving line with the best traditions of this House, but not legislation, even at ping-pong stage, and they are sensibly exactly like the scrutiny that every other Bill gets. Of seeking to do so in this case. course, there is another crucial difference between the way that this Bill has to be considered and the way that 3.15 pm any other Bill has to be considered. I am not averse to I realise that the Leader and the Government Chief ping-pong. I seem to remember occasions when a Bill Whip have a lot on their plate at the moment, but I has gone backwards and forwards six times. That can wonder whether, as the dust settles, they might conduct happen, indeed it can. However this Bill is not like a seminar for some of their colleagues, both in the any other Bill, because it is a direct and unavoidable other place and here, to which selected journalists consequence of a referendum, which this House voted might usefully be invited, to explain how ping-pong for without opposition, to give the decision about our works, as some of them seem to be having some future membership of the European Union to the difficulty in understanding it. British people. This, we properly did, and they properly gave us their verdict. But it is not just the fact that the Amendment 1A is a masterpiece of imprecision. It British people have told us that we need to pass the states simply that the Government must, enabling legislation to facilitate Brexit, because this “seek to negotiate an agreement … with the EU … to participate House made that decision as well—as did the House in a customs arrangement with the EU”. of Commons—when both Houses voted in favour of 1857 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1858

[LORD GROCOTT] state is the best unit for democracy. It is the only unit the implementation of Article 50. We all know that, that demands and gets loyalty and support from the having the referendum and the votes of both Houses people, in return for which it offers accountability. on Article 50 as our guide, we absolutely have to pass That is what it is all about: it is about the nation state this Bill into law, otherwise there will undoubtedly be being the basic unit for democracy. However much a cliff edge. There is a lot of hyperbole about cliff they support Europe, no one can claim that the European edges but it is not hyperbole to talk about a legal cliff Union is a democratic state, in the sense that you edge if this House does not pass the Bill in good time. cannot chose your Government if you are a citizen of My view of our constitution is this: this is an the European Union. That is why I have always been exceptional Bill, which has had exceptional scrutiny. against the European Union and in favour of the We have asked the Commons to think again, and it nation state, and above all the British nation state, has thought again and decided that it preferred most which is in many senses the home of democracy. of the Bill in the way that it was sent to us a couple of Democracy is the one word I would use if I were months ago. Now we need to expedite this. I, for one, saying why I was against the European Union. am not minded to support any proposals which will further prolong the Bill, the decisions having already Lord Cormack (Con): My Lords, I am sure I can been made, according to our constitution—and, I speak for the whole House in saying that I very much might say, in the best traditions of this House. hope that that will not be the last time my noble friend addresses this House. I regard him as a good and true Lord Robathan (Con): My Lords, the noble Lord, friend. We have never agreed on this particular issue, Lord Newby, has offered a tutorial in the constitution. but I respect his deep patriotism, to which he has given I am a relatively new Member of this House—some expression in his brief speech. All I would say to my people have been here far too long, I agree—but I noble friend and others who may be on his side of the understood that something called the Salisbury convention argument is that it is perfectly possible to be a passionate meant that the opposition parties would agree with patriot and to be a little concerned, to put it mildly, at those things put forward in the manifesto of a governing the process we are now going through. party. Perhaps somebody could explain to me why, I have never sought to say, and I am not going to when the Conservative manifesto said that we would say it now, that those of us who voted for certain leave the customs union, opposition parties—and, I amendments have been trying, as a noble friend suggests regret to say,some of my noble friends—have determined in an article in the Times this morning, to frustrate that we shall not. Surely if it is in the manifesto, it has Brexit. We have not. What we have been seeking to do been agreed by the people of this country and we is to improve a Bill which has to go on to the statute should accept the Salisbury convention. Perhaps at book. I totally accept what the noble Lord, Lord some point the noble Lord, Lord Newby, or the noble Grocott, said. Of course it has to go on to the statute Baroness, Lady Smith, might explain what happened book, and it has to do so fairly expeditiously. What we to the Salisbury convention and why it is being ignored have done in your Lordships’ House has been entirely left, right and centre. consistent with our constitutional duty. We have sent the Bill to another place, and it has now come back to Lord Spicer (Con): My Lords, this may be the last your Lordships’ House. I hoped that there would be time I address this House on a point of substance—unless no need to vote at all today. I think there is one my health changes. My physiotherapist says that I will issue—namely, the meaningful vote—which we will be playing tennis again by Christmas, which would be have to look at, if only to give what a number of nice because I used to captain the parliamentary tennis colleagues in the other place want, which is an opportunity team. But at the moment I do not think I could crawl to vote on a definite suggestion. We will come to that here from the Bishops’ Bar in a straight line without later. what that nice lady has given me across the counter. I think we can be quietly proud of the achievements Briefly, I want to make it clear why for the past of your Lordships’ House. We have succeeded in 30 years I have been a pain in the neck to those who persuading the Government to accept one amendment want to stay in Europe. I formed the Fresh Start group in its entirety and another almost in its entirety and to and the ERG some 30 years ago. I did so for a make, as the noble Lord, Lord Newby, said, something one-word reason. I will spend just three or four minutes, over 150 changes to the Bill, so we have nothing to be if I may, saying what I want to say. ashamed of. We have not procrastinated or delayed My one word is not “trade”. I think trade is terribly unduly. We have merely exercised our constitutional important. One of the reasons I am against the European responsibility. When the Bill leaves your Lordships’ Union is that it is a defensive trade bloc, basically in House today, I hope that, with one exception, there the German interest, often not providing the technical will be no need for it come back to your Lordships’ solutions that Germany thinks it needs, as has been House because the Bill—again, I refer to the noble shown by several cases recently. The word I want to Lord, Lord Grocott—must go on to the statute book. use is “patriotism”. I do not mean the fascist form of Although many of us across the House, probably a wrapping yourself up in a flag; I mean a bit of majority in your Lordships’ House, are sorry about sentiment—John Major’s warm beer and the shadows what is happening, even those of us who believe that of the trees across the cricket pitches, the music of the plebiscite is inimical to representative parliamentary Elgar, the Trooping of the Colour—but that is not the democracy accept what has happened, and we must essence. The essence of why I oppose staying in the now try to ensure that whatever the ultimate outcome, European Union is that it seems to me that the nation it is characterised by understanding and friendship 1859 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1860 across your Lordships’ House and, more important (c) a duty which ensures that Ministers of the Crown must still, understanding and friendship with those 27 countries have regard, in circumstances provided for by or under the Bill, to which are our allies and our friends and with whom we the statement mentioned in paragraph (b), do indeed wish to have, to quote the Prime Minister, a (d) provisions for the establishment of a public authority with deep and lasting partnership. I hope we can now functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings proceed fairly expeditiously this afternoon. if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined 3.30 pm in the Bill), and Lord Callanan: My Lords, I thank all noble Lords (e) such other provisions as the Secretary of State considers who have contributed to this debate. Not many people appropriate. had much to say about the issue of the customs union (2) The set of environmental principles mentioned in and the customs partnership; nevertheless, I thank subsection (1)(a) must (however worded) consist of— them for their contributions. I thank the noble Baroness, (a) the precautionary principle so far as relating to the environment, Lady Smith, in particular for her comments; I think (b) the principle of preventative action to avert environmental that in general they were wise words. As I said at damage, (c) the principle that environmental damage should as a Second Reading and repeatedly throughout the progress priority be rectified at source, of the Bill, of course we are prepared to look at (d) the polluter pays principle, constructive suggestions that have been made for (e) the principle of sustainable development, improvements to the legislation. We were in listening (f) the principle that environmental protection requirements mode, we have had extensive debate internally in must be integrated into the definition and implementation of government about many of the points that have been policies and activities, raised and, where we have been able to, we have moved (g) public access to environmental information, to reflect some of the comments, amendments and (h) public participation in environmental decision-making, Motions that have been made by Members of this and House. However, I say to the noble Lord, Lord Newby, (i) access to justice in relation to environmental matters.” that our position has always been that many of the 3B: Page 15, line 13, at end insert— debates we have had—and the customs union one is “( ) section (Maintenance of environmental principles etc.),” part of them—were not necessarily core to the central purpose of the Bill; rather, they were about the Lord Callanan: My Lords, the issue of environmental Government’s negotiation priorities. Of course, when protections spanned several hours of debate in our we have an agreement there will be further legislation House, both in Committee and on Report. Indeed, an and we will be able to come back and discuss these amendment was made to the Bill, tabled by the noble matters in more detail. Lord, Lord Krebs. The Government considered the Bearing in mind the wise words from the noble noble Lord’s amendment but decided instead to give Lord, Lord Grocott, I am sure many English Members our backing to an alternative amendment put forward will want to try to watch the game later. I hope by my right honourable friend Sir Oliver Letwin. That Scottish, Welsh and Northern Irish noble Lords will amendment provides further reassurance to Parliament not want to unduly frustrate this process to enable us of the Government’s intentions to uphold environmental to do that. protections after exit and sets out in legislation that On the issue of the customs union, the Government the Government will publish a draft Bill no later than have been clear that we are leaving the customs union six months after Royal Assent to this Bill. It delivers and that we will seek new arrangements that allow us robust protections. In particular, it acknowledges that to trade goods and services as frictionlessly as possible there may be circumstances where the new independent with the EU, free us to strike trade deals around the environmental body should be able to take the world and avoid any return to a hard border between Government to court, which I know was a desire of Northern Ireland and Ireland. I hope noble Lords will many noble Lords. This power will be proportionate be able to accept the amendments that were made in and appropriate and will supplement established processes, the other place. Once more, I beg to move. including of course parliamentary scrutiny. Motion A agreed. The amendment also requires that the draft Bill includes a list of the environmental principles, such as Motion B the “loser pays”principle and the precautionary principle within it. The draft Bill and the forthcoming policy Moved by Lord Callanan statement will provide further details of how these That this House do not insist on its Amendment 3 environmental principles will be interpreted and how and do agree with the Commons in their they will apply. These proposals will ensure that the Amendments 3A and 3B in lieu. primary focus of the principles will be the formation 3A: Page 9, line 21, at end insert the following new Clause— of policy at a national level. “Maintenance of environmental principles etc. As we made clear in our consultation document (1) The Secretary of State must, within the period of six and in last week’s Commons debates, the amendment months beginning with the day on which this Act is passed, applies only to England and to reserved matters. The publish a draft Bill consisting of— (a) a set of environmental principles, draft Bill itself will similarly apply only to England (b) a duty on the Secretary of State to publish a statement of and to reserved matters. That means that neither the policy in relation to the application and interpretation of those amendment nor the draft Bill that will flow from it will principles in connection with the making and development of trigger the legislative consent process. I understand policies by Ministers of the Crown, that the Welsh Government do not share our view, and 1861 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1862

[LORD CALLANAN] Minister said, the amendment that he has tabled ensures it is of course open to them to put forward a legislative that the new independent green watchdog, as it is consent Motion in the Assembly. That is clearly a often called, will have powers including the power to matter for the Assembly and it would not change the take legal action where necessary. I was also pleased to UK Government’s view. note that he referred to it in his comments as an The noble Lord, Lord Krebs, has tabled a further independent watchdog, which was one part of my amendment on this subject for consideration today. I amendment, so that is already recognised by the fear that the Government are unable to accept it as we Government, and that the Government would take do not believe it is appropriate to use this Bill fully to both proportionate and appropriate measures, which design the policy for the creation of the new independent was again part of my amendment. statutory body and the new statutory policy statement. However, in not moving my amendment, I do not We have already supported an amendment in the other wish to give the impression that this is the end of the place to ensure that there is a statutory commitment story. I think that the Government’s commitment to for government to set this body up. We are consulting replace the environmental protection that we have stakeholders and will bring forward policy proposals now as a member of the European Union is close but and a draft Bill in due course. Deciding further detail not quite there, and I hope that when the new environment on the body through the amendment would undermine Bill comes before this House later in the year, as we are that very consultation process. promised, there will be a further chance to debate The UK has a long history of environmental these matters. At that point, we can push the Government protection, and we will safeguard and improve on this further. record as we leave the European Union. This commitment underpins our 25-year environment plan and the Motion B1 not moved. Government’s pledge to leave the environment in a better state than we found it. Leaving the EU means Baroness Jones of Moulsecoomb (GP): My Lords, that we now have a unique opportunity to design a set to say that I am fuming at dropping this amendment of policies that drive environmental improvement with would be to put it mildly. I am incredibly disappointed. a powerful and permanent impact tailored purely to It would have been a move forward. We have such fine the needs of our country. words from the Government, but we do not have the I hope that noble Lords will accept the amendment action. Having said that, I admit that the Government’s sent to us from the other place and recognise that it compromise amendment has moved us forward, but underpins our pledge to use the opportunity that just not far enough. Therefore, as the noble Lord, Brexit provides to strengthen and enhance our Lord Krebs, just said, this is unfinished business and environmental protections, not to weaken them. We will come back. continue to welcome consultees’ views as part of the The Government promised us the same standards ongoing consultation on environmental principles and as the EU has given us, and they have backtracked on governance. I therefore urge noble Lords to accept the that. It is deeply offensive not only to this House but government amendment and beg to move. to the whole country that the Government have been so profligate with a promise they made and then Motion B1 (as an amendment to Motion B) decided not to honour it. I deeply regret the amendment Tabled by Lord Krebs not being moved, and we will be back. At end to insert “and do propose Amendments 3C to 3K as amendments to Commons Amendment 3A— Lord Wigley (PC): My Lords, at earlier stages of 3C: Line 8, leave out “making and development of policies” the Bill, when an amendment of the noble Lord, Lord and insert “exercise of relevant functions” Krebs, was debated, the Minister made the point that the amendment as then tabled could constrain the 3D: Line 9, after “Crown” insert “and arms’ length bodies” devolved authorities. Will he explain to the House 3DA: Line 10, after “Crown” insert “or arms’ length bodies” how his amendment has overcome that problem? 3E: Line 10, leave out “have regard” 3F: Line 11, leave out “to” and insert “act in accordance with” Baroness Jones of Whitchurch (Lab): My Lords, 3G: Line 13, leave out “a” and insert “an independent” government Motion B follows the debate that we have 3H: Line 15, after “proportionate” insert “and appropriate” been having throughout the passage of the Bill on the 3J: Line 22, after “must (” insert “as a minimum and” enforcement of environmental principles. On each 3K: Line 34, at end insert— occasion, noble Lords have voted on a cross-party “(3) The Secretary of State must take steps designed to ensure basis around the Chamber to send a message that the that the United Kingdom’s withdrawal from the EU does not Government’s proposals are not good enough and do result in the removal or diminution of any rights, powers, liabilities, not represent the protections for the environment that obligations, restrictions, remedies and procedures that contribute we currently enjoy in the EU. to the protection and improvement of the environment.”” At Third Reading this House supported, with a Lord Krebs (CB): My Lords, while not moving my significant majority, an amendment that set out how Motion B1, I should like first to thank the Minister for current EU rights could be replicated in UK law. I am and acknowledge the changes made in the other place; sorry that the Government did not feel able to support I would say that they capture about 80% of what we it when it went back to the Commons. They did, were trying to achieve with the amendment moved in however, finally and reluctantly—as the noble Lord, this House at Third Reading. In particular, as the Lord Krebs, said—come up with their own alternative. 1863 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1864

It is a step forward, and I am pleased that many of the areas that are the responsibility of the UK Government. arguments made by our side of the House, and across The amendment requires the Secretary of State to the Chamber, have had some impact. publish a draft Bill and makes no substantive change As the Minister will know,the views that we expressed to the law in Wales or anywhere else. This goes to the are supported by tens of thousands of individuals, heart of the point made by the noble Lord, Lord activists and NGOs around the country who have Wigley. We will work closely with the devolved campaigned vigorously on these issues. So we have Administrations on the new body, including on whether made progress, but there remains—as my noble friends they wish to take a similar or, indeed, different approach said—unfinished business. We will continue, therefore, themselves. The UK Government view is definitely to use every opportunity to achieve what we have been that this amendment does not meet the test for legislative promised. All we are trying to do is replicate what we consent. already have—and to be assured that it will be in place I reiterate that the amendment sent to us from the on Brexit day. Commons represents an opportunity to strengthen At the heart of environmental protection we need a and enhance our environmental protections, not to green watchdog, on a statutory footing and independent weaken them, and I hope that your Lordships will of government, that can take appropriate enforcement agree it today. I emphasise that we are still out to action against Ministers and arm’s-length bodies when consultation on the main legislation. There will be they ignore their environmental responsibilities: in plenty of opportunity to contribute to that consultation. other words, a watchdog that replicates the current I know that noble Lords and noble Baronesses who role of the EU Commission. We also want an obligation feel passionately about these matters will be able to on Ministers to act in accordance with the provisions contribute to that consultation—and then, of course, of the Bill, rather than simply to “have regard to” the once the draft Bill is launched, there will be frequent provisions,which is a much less stringent legal requirement opportunities in this House to debate the issues at and could lead to considerable legal uncertainty.Finally, great length, which I am sure noble Lords will take full we want to ensure that our exit from the EU does not advantage of. end, by accident or design, in a diminution of rights and powers otherwise enjoyed in the EU. Motion B agreed. It is important that these issues are resolved because, as we debated at Third Reading, the Government’s Motion C proposed alternative—the environmental principles and governance Bill—will not be available, at the earliest, Moved by Lord Callanan until after the next Queen’s Speech. For many of us, moreover,the consultation document produced in advance That this House do not insist on its Amendment 4, of that Bill is a thin and unpromising start to the to which the Commons have disagreed for their Reason promises made by the Secretary of State to deliver a 4A, and do propose Amendment 4B as an amendment world-leading environmental body, with independent, to the Bill, and Amendments 4C to 4E as amendments statutory backing, to hold the Government to account. to its Amendments 9, 161 and 162, in lieu— I hope, therefore, that the Minister will address our 4A: Because the Bill already contains sufficient protection for ongoing concerns, despite the progress that has been the areas of EU law concerned. made. I hope that he will make it clear that what we 4B: Page 56, line 32, at end insert— have before us is a minimum set of proposals and that “Affirmative procedure for instruments which amend or revoke negotiations will continue on the details. I hope, too, subordinate legislation made under section 2(2) of the ECA (including that he fully understands that we are not going away subordinate legislation implementing EU directives) and will press these arguments at every opportunity. 5CA (1) A statutory instrument which— (a) is to be made on or after exit day by a Minister of the Crown under a power conferred before the beginning of the Lord Callanan: My Lords, as I said at the start of Session in which this Act is passed, this debate, the issue of environmental protections has (b) is not to be made jointly with any person who is not a been widely discussed during the Bill’s passage through Minister of the Crown, both Houses, and I thank all noble Lords who have (c) amends or revokes any subordinate legislation made under contributed today. In particular I say to the noble section 2(2) of the European Communities Act 1972, and Baroness, Lady Jones—who I know feels passionately (d) would otherwise be subject to a lower procedure before about these issues—that we agree with her that the each House of Parliament and no procedure before any other environment should be left in a better state than when legislature, we inherited it, and that we want to use the opportunity may not be made unless a draft of the instrument has been of Brexit to design environmental policies that in laid before, and approved by a resolution of, each House of many respects are more advanced than those of the Parliament. European Union but are tailored purely for the benefit (2) Sub-paragraph (1) has effect instead of any other provision which would otherwise apply in relation to the procedure for such of the United Kingdom. I am sorry that the noble an instrument before each House of Parliament but does not Baroness feels disappointed, but she has the commitment affect any other requirements which apply in relation to making, of the Government—and the Secretary of State—to confirming or approving the instrument. take these matters forward in the Bill once the consultation (3) Any provision which— is finished. (a) may be made under the power mentioned in sub-paragraph I will address some of the points that were made. (1)(a), As I set out earlier, the consultation document is clear (b) is not provision which falls within sub-paragraph (1)(c), that these proposals are for England only. They cover and 1865 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1866

(c) is subject to a lower procedure than the procedure provided (2) The relevant authority must publish, in such manner as the for by sub-paragraph (1), relevant authority considers appropriate, a draft of the instrument may be included in an instrument to which sub-paragraph (1) at least 28 days before the instrument or draft is laid. applies (and is accordingly subject to the procedure provided for (3) The relevant authority must make a scrutiny statement by that sub-paragraph instead of the lower procedure). before the instrument or draft is laid. (4) If a draft of a statutory instrument which— (4) A scrutiny statement is a statement— (a) is to be made on or after exit day by a Minister of the (a) setting out the steps which the relevant authority has taken Crown under a power conferred before the beginning of the to make the draft instrument published in accordance with sub- Session in which this Act is passed, paragraph (2) available to each House of Parliament, (b) is not to be made jointly with any person who is not a (b) containing information about the relevant authority’s response Minister of the Crown, to— (c) amends or revokes any provision, made otherwise than (i) any recommendations made by a committee of either under section 2(2) of the European Communities Act 1972 (whether House of Parliament about the published draft instrument, and or not by way of amendment), of subordinate legislation made (ii) any other representations made to the relevant authority under that section, and about the published draft instrument, and (d) would otherwise be subject to a lower procedure before (c) containing any other information that the relevant authority each House of Parliament and no procedure before any other considers appropriate in relation to the scrutiny of the instrument legislature, or draft instrument which is to be laid. is laid before, and approved by a resolution of, each House of (5) A scrutiny statement must be in writing and must be Parliament, then the instrument is not subject to the lower published in such manner as the relevant authority considers procedure. appropriate. (5) This quotegraph applies to an instrument which is subject (6) Sub-paragraphs (2) to (5) do not apply if the relevant to a procedure before the House of Commons only as it applies to authority— an instrument which is subject to a procedure before each House of Parliament but as if the references to each House of Parliament (a) makes a statement in writing to the effect that the relevant were references to the House of Commons only. authority is of the opinion that, by reason of urgency, sub- paragraphs (2) to (5) should not apply, and (6) For the purposes of this quotegraph, the order of procedures is as follows (the highest first)— (b) publishes the statement in such manner as the relevant authority considers appropriate. (a) a procedure which requires a statement of urgency before the instrument is made and the approval of the instrument after it (7) This paragraph does not apply in relation to any laying is made to enable it to remain in force, before each House of Parliament of an instrument or draft instrument where an equivalent draft instrument (ignoring any (b) a procedure which requires the approval of the instrument differences relating to procedure) has previously been laid before in draft before it is made, both Houses. (c) a procedure not falling within quotegraph (a) which requires (8) This paragraph applies to an instrument which is subject to the approval of the instrument after it is made to enable it to a procedure before the House of Commons only as it applies to come into, or remain in, force, an instrument which is subject to a procedure before each House (d) a procedure which provides for the annulment of the of Parliament but as if references to each or either House of instrument after it is made, Parliament, or both Houses, were references to the House of (e) a procedure not falling within any of the above paragraphs Commons only. which provides for the laying of the instrument after it is made, (9) For the purposes of this paragraph— (f) no procedure. (a) a power is conferred whether or not it is in force, (7) For the purposes of this quotegraph a power is conferred (b) the draft instrument published under sub-paragraph (2) whether or not it is in force. need not be identical to the final version of the instrument or (8) References in this paragraph, other than in sub-paragraph (4), draft instrument as laid, to subordinate legislation made under section 2(2) of the European (c) where an instrument or draft is laid before each House of Communities Act 1972— Parliament on different days, the earlier day is to be taken as the (a) do not include references to any provision of such legislation day on which it is laid before both Houses, and which is made (whether or not by way of amendment) otherwise (d) in calculating the period of 28 days, no account is to be than under section 2(2) of that Act, and taken of any time during which— (b) do include references to subordinate legislation made (i) Parliament is dissolved or prorogued, or otherwise than under section 2(2) of that Act so far as that (ii) either House of Parliament is adjourned for more than legislation is amended by provision made under that section (but four days. do not include references to any primary legislation so far as so (10) Sub-paragraph (8) of paragraph 5CA applies for the amended). purposes of this paragraph as it applies for the purposes of (9) This paragraph is subject to any other provision made by sub-paragraph (1) of that paragraph. or under this Act or any other enactment. (11) In this quotegraph “the relevant authority” means— Enhanced scrutiny procedure for instruments which amend or (a) in the case of an Order in Council or Order of Council, the revoke subordinate legislation under section 2(2) of the ECA Minister of the Crown who has responsibility in relation to the (including subordinate legislation implementing EU directives) instrument, 5CB (1) This quotegraph applies where, on or after exit day— (b) in the case of any other statutory instrument which is not (a) a statutory instrument which— to be made by a Minister of the Crown, the person who is to make (i) amends or revokes subordinate legislation made under the instrument, and section 2(2) of the European Communities Act 1972, and (c) in any other case, the Minister of the Crown who is to (ii) is made under a power conferred before the beginning of make the instrument. the Session in which this Act is passed, or (12) This paragraph is subject to any other provision made by or under this Act or any other enactment.” (b) a draft of such an instrument, is to be laid before each House of Parliament and subject to Amendment to Lords Amendment 9 (see Bill 212) no procedure before any other legislature. 4C: After (5)(c) insert— 1867 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1868

“(ca) paragraphs 5CA to 5E (affirmative and enhanced scrutiny which will involve everything the noble Baroness has procedure for, and information about, instruments which amend called for. This proposed enhanced procedure for or revoke subordinate legislation under section 2(2) of the European amendments to Section 2(2) regulations reflects their Communities Act 1972 including subordinate legislation implementing EU directives),” unusual nature and unique status in our legislative framework, and will complete the tapestry of protection Amendment to Lords Amendment 161 (see Bill 212) that is threaded throughout the Bill’s provisions for 4D: After 5D(8) insert— retained EU law in all its many different forms. These “(8A) Sub-paragraph (8) of paragraph 5CA applies for the government amendments deliver the noble Baroness’s purposes of this paragraph as it applies for the purposes of goal, and I hope I can persuade her of this. sub-paragraph (1) of that paragraph.” Amendment to Lords Amendment 162 (see Bill 212) I will also explain the four reasons whythe Government cannotacceptthenobleBaroness’salternativeAmendment4F 4E: After 5E(6) insert— and why I believe, happily, that our amendment resolves “(6A) Sub-paragraph (8) of paragraph 5CA applies for the all of those issues. The first issue is devolution. I know purposes of this paragraph as it applies for the purposes of sub-paragraph (1) of that paragraph.” that the noble Baroness is fully committed to the devolution settlements, as am I and my ministerial 3.45 pm colleagues.Asitiswritten,thenobleBaroness’samendment onlyallowsamendmentbyprimarylegislationorsubordinate Lord Callanan: My Lords, we now come on to the legislation made under an Act of Parliament. This issue of enhanced protection of retained EU law. We means that no subordinate legislation at all made have always understood the concerns that motivated under devolved Acts can amend retained EU law in noble Lords, but were concerned that the original these areas, even when it is within the competence of amendment proposed by the noble Baroness, Lady thedevolvedAdministrations.WhereActsof thisParliament Hayter, did not strike the right balance. In short, that allow the devolved Administrations to make subordinate amendment, as discussed in the other place, would legislation, the amendment would require devolved have risked weakening rather than strengthening the legislation to be subject to a procedure before this rights in retained EU law. It would have left us unable Parliament. to ready the statute book for exit or update it after I know that it will not have been the intention of exit, wreaking havoc across our domestic statute book the noble Baroness to impinge on the competence or in the process. However, in the best traditions of this procedures of the devolved Administrations and House, both sides have now found more common Parliaments, and I am sure it was not her intention to ground. The noble Baroness, Lady Hayter, has tabled create an unprecedented position in which devolved another amendment, which is aligned in its purpose if legislation made by a devolved Minister should be not in the mechanism used, with the amendments in considered by this Parliament. This could, of course, lieu standing in my name. I am glad that the noble be solved by some radical changes in the drafting, but Baroness has been able to table a Motion to agree to the issue has been addressed in our amendment by some of those amendments. providing that it applies only to instruments made by Noble Lords will recall that at Report we brought UK Ministers before this Parliament. This is doubly forward amendments assigning a status to the different important at this late stage in the Bill’s passage, when categories of retained direct EU law.The noble Baroness, there is no time to seek supplementary legislative Lady Hayter, herself mentioned, when tabling her consent from the devolved Assemblies. original amendment, that there is a class of law where Our second concern with the noble Baroness’s our amendments at Report did not provide for enhanced amendment is the range of still significant issues where protection. That is our domestic implementation of it would create legal uncertainty. Amendment 4F refers EU directives, which is preserved through Clause 2 of to retained EU law “relating to” various policy areas. the Bill. Much of this domestic implementation has Quite apart from the fact that there are certainly other happened under Section 2(2) of the European areas potentially worthy of protection, we are concerned Communities Act 1972, which has historically been that it will never be clear what law falls into these the delegated power used to implement many, if not categories.An example would be a piece of EU legislation most, of our EU obligations. relating to which classes of investor may or may not The Government are alive to the unique position purchase certain financial products. Does that relate to that regulations made under the ECA to implement consumer protection or financial conduct, or both? Will directives hold in our domestic legislation. They implement it depend on the intent of the modification in question? law which was negotiated at the EU level and which As we have said before, if anybody feels that their the UK as a member state was under a binding obligation private interests have been adversely affected, would to implement. They could in the past be modified only they be able to challenge any SI on the basis that it had within the constraints of EU law. That is why the improperly either undergone, or not undergone, the Government have tabled Amendments 4B, 4C, 4D and enhanced procedure referred to in the amendment? 4E, to reinforce protections for regulations created by Even if an SI had undergone the higher of the two Section 2(2) of the ECA and put in place an enhanced procedures, confusion over which procedure should procedure once we have left the EU for secondary have applied could very well give rise to a host of legal legislation amending such regulations. challenges on procedural grounds and risk crucial We will have left the EU and be free to change these corrections to ready our statute book for exit or future laws, but it is right that this is possible only within the improvements being struck down. Again, happily, we constraints placed on us by active and informed believe that the government amendment resolves this consideration by Parliament, via an enhanced procedure issue by being clear that it focuses on the legislation 1869 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1870

[LORD CALLANAN] representationsfromotherquarters,andtheirconsideration made under Section 2(2) of the European Communities of them. This statement is designed to sit alongside Act to implement EU directives, and which is preserved and complement the statements which the Bill already by Clause 2 of the Bill. This will apply to all policy requires Ministers to make alongside any SI amending areas. We have also ensured that instruments can be Section 2(2) regulations, explaining them and the “good combined and that, where there are grey areas, an reasons” for them, and therefore for any departure instrument can safely be upgraded to our enhanced from EU directives as they stood on exit. procedure. Our amendment provides both certainty I apologise to noble Lords that I have dwelt at and enhanced protection across the board. length on the details here, but before closing I will also The third concern is the interaction with other draw the House’s attention to the numerous other provisions in the Bill. I am very pleased that both commitments the Government have made to ensure Houses have now accepted the provisions on status that rights and protections within equalities, workers’ which the Government tabled on Report. These set rights and consumer protection and other rights and out how EU regulations, tertiary legislation, decisions standards are not diluted or damaged as we depart and treaty rights will be amended, in particular ensuring from the EU. In regard to equalities, a government that EU regulations and treaty rights will only be amendment to the Bill from its initial Commons stage amended as if they were primary legislation. However, ensures that the Government provide confirmation these provisions do not account for those others. If that they have had due regard to the need to eliminate there is an EU regulation relating to one of the areas discrimination, harassment, victimisation and any other in the noble Baroness’s amendment, this Bill would conduct prohibited under the Equality Act 2010 when provide two competing procedures and potentially using the powers in the Bill. The UK has a long and conflicting instructions for how to amend it, and the proud tradition of upholding and championing rights scrutiny which would apply to any amendment by and protections, both domestically and internationally. secondary legislation. In some cases, we might be able This is a legacy the Government are determined to to muddle through but that would not be good law. As build on as we move into the next chapter of this I said a moment ago, it would also open any changes country’shistory.I hope that the government amendments to these important EU regulations being struck down. are welcomed by this House as the best solution This cannot be good for the certainty that any enhanced forward in this matter, and I beg to move. protection is meant to provide. Motion C1 not moved. The fourth issue is that we wish to say more in the Bill itself and less in SIs, as the Opposition have pushed for throughout the passage of the Bill. The Lord Goldsmith (Lab): My Lords, perhaps the most noble Baroness’s amendment asks us to set out an important words the Minister just said were to the enhanced procedure in an SI, including for the approval effect that rights and protections will not be diluted or of both Houses and consultation. I am pleased to damaged as we leave the European Union. I noted assure the House that we have done this already in the those words, and we will all study Hansard carefully to government amendments, which will provide that any get the extent of the assurances he has given. That was changes made to these regulations by existing powers what lay at the heart of this debate: whether the within our statute book will go through the affirmative consequence of leaving the EU would be a diminution parliamentary procedure. There will therefore be—this of, or damage to, rights and protections that have cannot be stressed enough—a debate and a vote in grown up over the years and which for many people both Houses on every one of these statutory instruments. are of enormous importance. The areas identified in But they also go one step further, providing that these my noble friend Lady Hayter’s amendment indicate changes will also attract a new, enhanced pre-laying the areas of importance, such as workers’ rights and scrutiny requirement, which will ensure that there is a equality, as well as others to which the Minister referred. proper opportunity for public and parliamentary I was glad to hear from the way the Minister consultation on its content before the draft is laid. described his amendment that there is no disagreement This amendment proposes that any SI created by an between us over the importance of protecting those existing power in our statute book which amends or rights; the disagreement is on the mechanism for doing revokes any Section 2(2) regulation must be published so. To some extent, we are in uncharted territory. So 28 days in advance of a draft being laid before both long as these were rights derived from the European Houses of Parliament—a period, I hasten to add, Union and so long as we remain in the European which does not include recesses. This is not merely if Union, they cannot be changed by a decision of a the Minister thinks it is warranted, as the noble Baroness’s Minister or the Government alone. amendment suggests. This 28-day period presents both The Minister has given assurances about the the public and parliamentarians—as well as parliamentary Government’s intentions and assurances that the committees—with the opportunity to comment and mechanisms being put forward, which we welcome, make recommendations on the content of the statutory will give effect to the need to maintain those protections. instrument. Any recommendations will then be reflected People will be watching—the Minister knows that—and upon by the Government, who will consider whether they will be observing carefully how that promise is to amend the SI ahead of laying it before Parliament. assured and safeguarded. Fundamentally, that is what When introducing the SI to Parliament, the Minister these amendments from our Benches were designed to or relevant authority will then also have to provide a achieve: to make sure that these rights were neither “scrutiny statement”, which details the Government’s diluted nor damaged. On that basis, we look forward response to the recommendations they received and any to seeing how these assurances work in practice. 1871 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1872

4 pm and rights of action based on the general principles of EU law. The Commons has done just that and has Baroness Neville-Rolfe (Con): My Lords, I give my made it clear—for the third time in the passage of this strong support to government Amendment 4B in its Bill, and by increasing majorities each time—that it unamended form and to Amendments 4C, 4D and 4E, does not want these elements of the EU legal system and I encourage others to do so, if necessary.Throughout retained when we cease to be under obligations as an the passage of the Bill I have been concerned about EU member state. In line with established convention, serious mistakes that might creep on to the statute we should now respect the will of the elected House on book if statutory instruments made under the Act these matters. are not published and consulted on. Proposed new paragraph 5CB(2) responds well to those concerns Let me say a little more to address directly some of with, 28 days in advance, publication of the drafts of the concerns that I know some noble Lords still have, any instruments making changes to provisions enacted and to respond directly to some observations that have under Section 2(2), which has been the parent of much been made. The simple fact is that the Charter of UK law over the last 45 years. Fundamental Rights was not intended to, and did not, create any new rights. As protocol 30 makes clear, it If I have understood correctly, there is cause to reaffirmed the rights that were already recognised in celebrate and to thank the Minister for this change EU law: that is, law that is being retained in the United and for the other scrutiny changes. They will allow all Kingdom under the terms of the Bill. As the illustrative relevant stakeholders, whether they are consumers, analysis we have published sets out in greater detail, trade unions or from business, or indeed from other most of the fundamental rights protected in the charter countries, to review such drafts and help the Government are also protected in UK law, most notably under the to address any concerns and correct any errors of the Human Rights Act 1998, in the common law and via kind that we all want to avoid as EU rules are carried specific statutory protections—for example, those in over into UK law on Brexit day. equalities legislation. Rights saved by the Bill and many of the issues currently justiciable via the general Lord Callanan: First, I thank the noble and learned principles of EU law will continue to be justiciable Lord, Lord Goldsmith, for his comments and for his without rights of challenge based specifically on the support, which I think I detected, for the Government’s charter or general principles being retained, because amendments. I am also very grateful for the comments other sources of rights will continue to exist and of my noble friend Lady Neville-Rolfe, who has taken operate in UK law. This includes, for example, the a close interest in this matter. It is a very technical but right to equal treatment and non-discrimination, which important matter, and I know that she has engaged on will continue to be protected by existing, long-standing it with Ministers and officials. She brings the benefit domestic rights of action. of her experience in government and we are grateful for her contributions. By contrast, as we have said, keeping rights of As I said in opening the debate on this Motion, the challenge based on the charter or general principles, government amendments are the final thread in the which could result in disapplication of primary legislation, tapestry of protection woven by the Bill. On Report, would be inconsistent with the principle of parliamentary we addressed protected EU regulations and treaty sovereignty. It would also directly undermine the legal rights, and now we are adding, as requested, an enhanced certainty provided by the Bill if these rights are retained procedure to protect the legislation implementing way into the future but in relation only to a limited directives.Most importantly,the government amendments and reducing body of law. deliver the procedure and the protection that underlies The Government have gone to considerable lengths it. I therefore commend them to noble Lords. to listen and respond to concerns, particularly in relation to accrued rights. We want to get the balance right. Motion C agreed. Therefore, in rejecting this House’s amendments, the other place has agreed to a significant additional delay to the prohibition on certain general principles rights Motion D of challenge to three years after exit. This approach Moved by Lord Keen of Elie seeks to strike a balance and a fair compromise between That this House do not insist on its Amendment 5, strongly held views on all sides. Inevitably, some noble to which the Commons have disagreed for their Lords will still disagree and argue that we should go Reason 5A. further, or indeed that we should not go so far, and I 5A: Because none of the Charter of Fundamental Rights understand the range of views. It is, however, for the should be part of domestic law on or after exit day. elected House ultimately to determine these matters and that is what it has done. I suggest that we should The Advocate-General for Scotland (Lord Keen of Elie) now respect that decision. (Con): My Lords, with the leave of the House, I will I turn to the amendment from the noble Lord, Lord speak also to Motions P and Q. Beith, in respect of validity challenges. He is absolutely These are complex matters which, for understandable right to draw attention to this technical yet important reasons, have raised particular concerns across the issue and I am grateful for the diligent and constructive House. Nobody on any side of this House wants to see way in which he has done so. The Government’s view our rights and protections diluted when we leave the is that it would not in general make sense to create for European Union. I therefore appreciate why your our domestic courts an entirely new jurisdiction in Lordships asked the other place to think again about which they are required to, in effect, step into the the exclusion of the Charter of Fundamental Rights shoes of the CJEU and consider, for example, questions 1873 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1874

[LORD KEEN OF ELIE] saying any more would raise uncertainty—for example, around whether the relevant EU institution misused which courts would hear these cases and, crucially, its powers or complied with the applicable procedural who would defend any challenges. requirements. It is nevertheless important to have a Any regulations the Government brought forward mechanism to enable Ministers, with Parliament’s would be able to address these finer points in the agreement, to provide a right of challenge in domestic specific circumstances they cater for, but the effect of law to the validity of retained EU law in some the noble Lord’s amendment would be to provide for a circumstances. The original amendment from the noble situation where none of this is clear and our courts Lord, Lord Beith, made on Report, would have removed would, in effect, be left to try and work it out themselves. that right, which is why we could not agree to it and The core purpose of the Bill is to minimise legal why the elected House has rejected that proposal. I uncertainty as we exit the EU. This amendment therefore urge the noble Lord and this House to agree with the works directly against that. I appreciate that may not Commons in that decision. In doing so, however, be the noble Lord’s intention. He wishes to avoid a perhaps I can also try to reassure him and other noble lacuna in the event that any regulations that allow for Lords on this point and say a little about the amendment challenges are not made before exit. However, I repeat in lieu that he has proposed. my firm assurance that the Government’s clear intention We have always recognised that there may be some is to have regulations on this in place before exit day. circumstances where there is good reason for the validity In the light of that, the amendment is unnecessary. I of an EU instrument to be challenged in a domestic hope that, in clarifying the Government’s intentions, court. One possible example is where a decision of an I am able to address the concerns expressed in both EU institution or body is addressed to an individual Houses. I beg to move. or business in the United Kingdom but later overturned by the CJEU in so far as it applies in the EU. That Motion D1 (as an amendment to Motion D) individual or business will continue to be bound by the decision in the United Kingdom, unless the United Tabled by Lord Pannick Kingdom courts could overturn it as well. We have not At end to insert “and do propose Amendment 5B proposed—and I do not suggest that we do so today—that in lieu— regulations would deal only with circumstances where, 5B: Page 3, line 20, leave out subsection (4) and insert— for example, a public interest test is met. That is, “( ) The Charter of Fundamental Rights (apart from the however, an interesting suggestion which we are happy Preamble and Chapter V) is part of domestic law under this Act to consider as we discuss with Parliament and others on or after exit day save that— the potential content of any regulations. But I can (a) there is no right of action in domestic law on or after exit confirm, for the avoidance of any doubt, that the day based on a failure to comply with any provision of the Government in no way intended to cherry pick which Charter; individual cases would be allowed to continue before (b) no court, tribunal or public authority may, on or after exit domestic courts. Any regulations we make would be day— most likely to specify certain types or class of case that (i) disapply or quash any enactment or other rule of law, or could be brought after exit. To be clear: this is about (ii) quash any conduct or otherwise decide that it is unlawful, preserving rights and protections. because it is incompatible with any provision of the Charter.”” This is a technical issue that may specifically impact Lord Pannick: I thank the noble and learned Lord individuals and businesses and we are therefore keen the Minister and the Solicitor-General for the care to listen to and take into account the views of Parliament and attention they have taken, not only on this issue and undertake consultation with stakeholders. Following but on all the legal issues that have been raised by this that, and subject to parliamentary approval, our intention Bill. I was particularly pleased that the noble and would be that regulations would be in place before exit learned Lord confirmed that the general principles of day.However,such a right of challenge maybe appropriate EU law—that is, outside the charter—can be relied in circumstances that we cannot accurately predict at upon in court proceedings, not to challenge legislation this stage—or, indeed, before the point of exit—and or decisions but as an interpretive device, and his the power would therefore permit further regulations confirmation that equality is one of those general to be made after exit if Parliament agrees. principles of law. In the light of that, and given the Turning specifically to the amendment in lieu of the eagerness of the House to move on to the important noble Lord, Lord Beith, I appreciate the constructive discussion on the Motion of the noble Viscount, Lord spirit in which he has tabled it but we cannot accept it. Hailsham, I shall not move Motion D1. The effect of the noble Lord’s amendment would be that in the event that Parliament did not approve any Motion D1 not moved. regulations allowing for certain validity of challenges to be available, or if by the point of exit no class of Lord Beith (LD): My Lords, in the same spirit, I case had arisen that the Government considered—and thank the Minister for the full and careful explanation Parliament agreed—should be permitted, all such he has given today and thank him and the Solicitor- challenges would as a default be permissible in domestic General for their assistance in going into this carefully. law. As I noted, allowing for a right of challenge to the My concern was about setting up the Government and validity of retained EU law would be to hand our Ministers as gatekeepers to the court room without domestic courts a wholly new jurisdiction. These are any clear principles or certainty about whether there not cases they are able to hear at present. Simply would be regulations. We now have on the record a saying that they can now hear all such cases without much clearer indication of how these powers might 1875 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1876 be used. That is not perfect but it is a distinct improvement My ministerial colleagues in the other place have on where we were and I do not intend to press my given examples of where this might come to pass if amendment in that circumstance. our law looked as if it was still referring to the EU. We have a duty to do everything we can to provide legal certainty, and I know that I share that goal with Peers Baroness Ludford (LD): My Lords, I hope the across the House. Wewant a sensible solution, accepting Government will keep an open mind in the future that the powers should be as wide as is required but no about the charter in the terms in which the Motion of wider.The Government have honoured their commitment the noble Lord, Lord Pannick, was framed—that is, as on this front with the limits we have already put on the a guide to interpretation of retained EU law. While the correcting power, and indeed the total removal of one noble and learned Lord, Lord Keen of Elie, said that of the key powers in the Bill now that further analysis most of the charter rights are found in other sources has weakened the case for it. of law, not all of them are. This may prove to be an We have followed the recommendation of your issue in the Brexit negotiations, which is why I hope Lordships’ Constitution Committee and have required that the Government might have cause and justification Ministers to make, alongside any exercise of the key to revisit it. powersintheBill,astatementthattheyhave“goodreasons” I suggest that in the context of security co-operation for their course of action and an explanation of this to and data transfers for the tech industry, this may be a Parliament. We are happy to have been able to do as factor in the extent and scope of our co-operation recommended by the committee, and we are grateful with the European Union in the future. I therefore for its constructive and expert approach to this issue. make a plea that the Government do not totally close Noble Lords asked the Commons to consider again their mind to the EU Charter of Fundamental Rights the test that should circumscribe the breadth of the as a guide to interpretation because I think that could correcting power. They have done just that and they be well received by those whom we have to persuade have found that a stark test of necessity, while perhaps on the scope of co-operation. understandable in everyday language, is not acceptable on the statute book. Indeed the Commons have now Lord Keen of Elie: My Lords, I am grateful to all voted four times in favour of “appropriate”—I repeat, those who have spoken in this debate, in particular the four times. Given that, I do not think it would be the noble Lords, Lord Pannick and Lord Beith, for their right course for this issue to return to the Commons observations about engagement with the Government yet again, when their view has been so clearly expressed. over these matters. The Government have listened and I ask noble Lords to consider that. the other place has agreed to significant amendments Having accepted what the task ahead is and the in respect of certain challenges based on general principles principle of how to approach it, we must ask ourselves of EU law. Given that, I hope that the House will today what statutory wording will permit the sensible, endorse the decision today. logical and common-sense corrections we all support without giving unnecessary discretion to Ministers? Motion D agreed to. For example, our approach will permit us to end inappropriate reciprocal arrangements such as those 4.15 pm established by the directive on the return of cultural goods, which could leave the EU 27 able to force UK Motion E nationals into court to demand the return of cultural objects brought here, with no power for the UK to Moved by Lord Keen of Elie: take legal action in similar situations overseas. That this House do not insist on its Amendment 10, Other potentially unnecessary but sensible and to which the Commons have disagreed for their appropriate corrections to deficiencies would include Reason 10A. folding the EU’s authorisation process for controlling 10A: Because it inappropriately restricts the power in Clause 7(1). the export of devices that risk being used for torture into the UK’sown more responsive and effective domestic export control regime. We looked at this important Lord Keen of Elie: My Lords, with the leave of the issue and, by sending our amendments, we asked the House, I will speak also to Motion L and Motion M. Commons to look again. As I said, they have done so. The scope of the powers in this Bill is not an issue that They have debated at length and they have decided either House has taken lightly, and it is not one that that it remains clear that only the original wording of the Government take lightly, either. Before the Bill was the Bill will suffice. I hope that noble Lords will introduced, the Government set out the shape and size respect the decision they have made. I beg to move. of the task ahead and why it could be achieved only by the use of relatively broad delegated powers. I do not believe that any noble Lord rejects the premise of that Lord Lisvane (CB): My Lords, I am very grateful to task. All of us here today accept that our law must be the noble and learned Lord for setting out the corrected so that it works properly when we leave the Government’s case with such precision and care. I am EU and EU law ceases to apply in the United Kingdom. very grateful, too, to the number of noble Lords who None of us wishes to face a scenario, once we leave the voted in substantial majorities for the three amendments EU, where the law does not work or where it is left so covered by the three Motions in this group. complex, confusing and convoluted that we spawn a The Minister and his colleagues have been rather new generation of legal cases that inherit the mantle of critical of what I might call the family of amendments Jarndyce v Jarndyce. that seek to bolt on to the Bill issues of policy.They have 1877 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1878

[LORD LISVANE] Lord Keen of Elie: I am obliged to noble Lords for said, “No, this Bill has a central theme”. Of course, their contributions. On the last point, it is not the these three amendments address that central theme. Government’s intention to cut corners anywhere in the They are about the balance of power between Parliament legislative process. I hope that noble Lords will take and the Executive. I am quietly disappointed that, some comfort from that. despite the degree to which the Government have As the noble Lord, Lord Lisvane, observed, no new moved in terms of explanatory statements and other arguments were raised in the Commons, which underlines matters, the Commons did not take this view. I did not its view on the current state of the legislation. Following see any new material or arguments deployed in the the theme of the noble and learned Lord, Lord Goldsmith, Commons. In particular, I did not see an in response to the point on the matter of interpretation acknowledgement that a definition of what might fall raised by the noble Lord, Lord Lisvane, it will of within the category of necessity—that is, “necessary”— course be necessary to interpret the legislation in an might prevent Ministers being overly constrained by appropriate manner. the use of that term. However, I think that, if one were to craft an interpretative provision of that sort, it Motion E agreed. would solicit a very similar answer from the House of Commons. So I feel that the argument has been made, and Motion F perhaps that is where it should rest for the time being—but with a weather eye, which I know will be exercised by Moved by Baroness Evans of Bowes Park your Lordships, on how “appropriate” is interpreted by Ministers in the use of these provisions. That this House do not insist on its Amendment 19 and do agree with the Commons in their Lord Goldsmith: My Lords, in following what was Amendments 19A and 19B in lieu and do propose said by the noble Lord, Lord Lisvane, I will make one Amendments 19C to 19L as amendments to Commons observation. In this House, noble Lords have supported Amendment 19A— the noble Lord’s amendment, and rightly so, because 19A: Page 8, line 43, at end insert the following new Clause— the focus has been on whether there is an appropriate balance of power between the Executive and Parliament. “Parliamentary approval of the outcome of negotiations with the EU In voting in the way that they did, noble Lords expressed their view, which has been noted quite plainly by the (1) The withdrawal agreement may be ratified only if— other place, that it is for Parliament to make such (a) a Minister of the Crown has laid before each House of Parliament— (i) a statement that political agreement has been important decisions. reached, As the noble and learned Lord, Lord Keen of Elie, (ii) a copy of the negotiated withdrawal agreement, and said, having got to the stage where the House of (iii) a copy of the framework for the future relationship, Commons has stated four times that it wants to stick with “appropriate”, which it thinks is appropriate, and (b) the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of does not think it necessary to go any further, we are the House of Commons on a motion moved by a Minister of the not recommending that noble Lords should disagree Crown, the amendment. But the important point has been (c) a motion for the House of Lords to take note of the made, and two comments follow from that. First, we negotiated withdrawal agreement and the framework for the hope that Ministers will carefully realise the significance future relationship has been tabled in the House of Lords by a of the debate that has taken place; we imagine that Minister of the Crown and— they will. Secondly, we hope that people outside this (i) the House of Lords has debated the motion, or House will realise that, in pushing and speaking to (ii) the House of Lords has not concluded a debate on the these amendments, this House has been doing its motion before the end of the period of five sitting days beginning job of making sure that the Executive is held to with the first sitting day after the day on which the House of account. Commons passes the resolution mentioned in paragraph (b), and (d) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement. Lord Wallace of Saltaire (LD): My Lords, there are (2) So far as practicable, a Minister of the Crown must make two stages in the mass of subordinate legislation that arrangements for the motion mentioned in subsection (1)(b) to be we will have: what is required to be in place before debated and voted on by the House of Commons before the March 2019 and what can be dealt with afterwards. European Parliament decides whether it consents to the withdrawal Many of us in this House are now conscious that time agreement being concluded on behalf of the EU in accordance is extremely short and the mass of legislation that with Article 50(2) of the Treaty on European Union. needs to be got through before March 2019 is extremely (3) Subsection (4) applies if the House of Commons decides large. If possible, we would like to hear from the not to pass the resolution mentioned in subsection (1)(b). Minister that, over the next six to nine months, Ministers (4) A Minister of the Crown must, within the period of will resist the temptation to cut corners on parliamentary 28 days beginning with the day on which the House of Commons approval of subordinate legislation and in the general decides not to pass the resolution, make a statement setting out how Her Majesty’s Government proposes to proceed in relation adjustment of required legislation because there is to negotiations for the United Kingdom’s withdrawal from the such a shortage of time, and that he will make sure EU under Article 50(2) of the Treaty on European Union. that Parliament and this House are allowed thorough (5) A statement under subsection (4) must be made in writing scrutiny of all the measures that need to be put in and be published in such manner as the Minister making it place. considers appropriate. 1879 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1880

(6) This section does not affect the operation of Part 2 of the (i) a motion in neutral terms, to the effect that the House of Constitutional Reform and Governance Act 2010 (ratification of Commons has considered the matter of the statement mentioned treaties) in relation to the withdrawal agreement. in paragraph (a), to be moved in that House by a Minister of the (7) In this section— Crown within the period of seven Commons sitting days beginning with the day on which the statement mentioned in paragraph (a) “framework for the future relationship” means the document is made, and or documents identified, by the statement that political agreement has been reached, as reflecting the agreement in principle on the (ii) a motion for the House of Lords to take note of the substance of the framework for the future relationship between statement mentioned in paragraph (a) to be moved in that House the EU and the United Kingdom after withdrawal; by a Minister of the Crown within the period of seven Lords sitting days beginning with the day on which the statement “negotiated withdrawal agreement” means the draft of the mentioned in paragraph (a) is made. withdrawal agreement identified by the statement that political agreement has been reached; (5D) A statement under subsection (5B) or (5C)(a) must be made in writing and be published in such manner as the Minister “ratified”, in relation to the withdrawal agreement, has the making it considers appropriate. same meaning as it does for the purposes of Part 2 of the Constitutional Reform and Governance Act 2010 in relation to a (5E) Subsection (5F) applies if, at the end of 21 January 2019, treaty (see section 25 of that Act); there is no agreement in principle in negotiations under Article 50(2) of the Treaty on European Union on the substance of— “sitting day” means a day on which the House of Lords is sitting (and a day is only a day on which the House of Lords is (a) the arrangements for the United Kingdom’s withdrawal sitting if the House begins to sit on that day); from the EU, and “statement that political agreement has been reached” means (b) the framework for the future relationship between the EU a statement made in writing by a Minister of the Crown which— and the United Kingdom after withdrawal. (a) states that, in the Minister’s opinion, an agreement in (5F) A Minister of the Crown must, within the period of five principle has been reached in negotiations under Article 50(2) of days beginning with the end of 21 January 2019— the Treaty on European Union on the substance of— (a) make a statement setting out how Her Majesty’s Government (i) the arrangements for the United Kingdom’s withdrawal proposes to proceed, and from the EU, and (b) make arrangements for— (ii) the framework for the future relationship between the EU (i) a motion in neutral terms, to the effect that the House of and the United Kingdom after withdrawal, Commons has considered the matter of the statement mentioned (b) identifies a draft of the withdrawal agreement which, in the in paragraph (a), to be moved in that House by a Minister of the Minister’s opinion, reflects the agreement in principle so far as Crown within the period of five Commons sitting days beginning relating to the arrangements for withdrawal, and with the end of 21 January 2019, and (ii) a motion for the House of Lords to take note of the (c) identifies one or more documents which, in the Minister’s statement mentioned in paragraph (a) to be moved in that House opinion, reflect the agreement in principle so far as relating to the by a Minister of the Crown within the period of five Lords sitting framework.” days beginning with the end of 21 January 2019. 19B: Page 15, line 12, at end insert— (5G) A statement under subsection (5F)(a) must be made in “( ) section (Parliamentary approval of the outcome of negotiations writing and be published in such manner as the Minister making with the EU),” it considers appropriate. 19C: Line 17, after “five” insert “Lords” (5H) For the purposes of this section— 19D: Line 18, after “first” insert “Lords” (a) a statement made under subsection (4), (5C)(a) or (5F)(a) may be combined with a statement made under another of those 19E: Line 30, leave out “28” and insert “21” provisions, 19F: Line 37, at end insert— (b) a motion falling within subsection (5A)(a), (5C)(b)(i) or “(5A) A Minister of the Crown must make arrangements (5F)(b)(i) may be combined into a single motion with another for— motion falling within another of those provisions, and (a) a motion in neutral terms, to the effect that the House of (c) a motion falling within subsection (5A)(b), (5C)(b)(ii) or Commons has considered the matter of the statement mentioned (5F)(b)(ii) may be combined into a single motion with another in subsection (4), to be moved in that House by a Minister of the motion falling within another of those provisions.” Crown within the period of seven Commons sitting days beginning 19G: Line 40, at end insert— with the day on which the statement is made, and “(6A) In subsection (1) “framework for the future relationship” (b) a motion for the House of Lords to take note of the means the document or documents identified, by the statement statement to be moved in that House by a Minister of the Crown that political agreement has been reached, as reflecting the agreement within the period of seven Lords sitting days beginning with the in principle on the substance of the framework for the future day on which the statement is made. relationship between the EU and the United Kingdom after (5B) Subsection (5C) applies if the Prime Minister makes a withdrawal.” statement before the end of 21 January 2019 that no agreement in principle can be reached in negotiations under Article 50(2) of the 19H: Line 41, at end insert— Treaty on European Union on the substance of— ““Commons sitting day” means a day on which the House of (a) the arrangements for the United Kingdom’s withdrawal Commons is sitting (and a day is only a day on which the House from the EU, and of Commons is sitting if the House begins to sit on that day);” (b) the framework for the future relationship between the EU 19J: Line 42, leave out from beginning of line 42 to end of and the United Kingdom after withdrawal. line 46 (5C) A Minister of the Crown must, within the period of 19K: Line 46, at end insert— 14 days beginning with the day on which the statement mentioned ““Lords sitting day” means a day on which the House of in subsection (5B) is made— Lords is sitting (and a day is only a day on which the House (a) make a statement setting out how Her Majesty’s Government of Lords is sitting if the House begins to sit on that day);” proposes to proceed, and 19L: Line 54, leave out from beginning of line 54 to end of (b) make arrangements for— line 56 1881 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1882

The Lord Privy Seal (Baroness Evans of Bowes Park) I will not go through either amendment line by line (Con): My Lords, as you will have noticed there has at this stage as my noble friend will want to set out his been a great deal of movement and debate on this stall himself, but from the Government’s perspective issue since we last considered it, including the tabling his first Amendment, 19M, retains the same major of a manuscript amendment just this morning, so I flaws, both practical and constitutional, as the one this hope you will indulge me if I spend a moment to take HousepassedduringReport.Thegovernmentamendment stock of where we are. on this subject has now been accepted in the other place. However, noble Lords will doubtless be aware Ahead of the other place’s consideration of our that its acceptance was in part on the basis that further amendments, the Government tabled an amendment conversations would take place with MPs on the in lieu of my noble friend Lord Hailsham’s Government Benches who held concerns about elements Amendment 19. This amendment reflected the spirit of it. In particular, we heard the concern that our of this House’s advice and incorporated a number of amendment does not make overt provision for elements of my noble friend’s amendment. This included parliamentary input in the unlikely event that we do guaranteeing in law the Government’s commitment not agree a deal with the EU. We said that we would to: tabling a Motion on the final deal in both Houses; consider this point and come back with a new version securing an Act of Parliament containing provision in the House of Lords, which is precisely what we have for the implementation of the withdrawal agreement; done. ensuring that the Commons Motion occurs before the European Parliament votes, so far as is practicable; and giving the Government 28 days to make a statement 4.30 pm setting out their next steps in the unlikely event that Our original amendment provided that, if Parliament the Commons rejects the deal put to it. But our rejects the final deal, the Government must make a amendment in lieu included some significant differences. statement setting out their next steps in relation to For example, we attached a deadline to this House’s negotiation within 28 days of that rejection. Our new consideration of a Motion on the final deal. As some amendments, 19C to 19L, guarantee a statement and a noble Lords, such as my noble friends Lord Lamont Motion, so ensuring a guaranteed opportunity for of Lerwick and Lord Howard of Lympne, raised both Houses to debate the Government’s proposed when we debated this issue on Report, it is not right next steps. that your Lordships’ House could have a veto on the Not only that, but we have also expanded the set of deal simply by refusing to consider a Motion. circumstances in which that opportunity would arise to cover the three situations described in my right The Government also removed a number of the honourable and learned friend Dominic Grieve’s deadlines set out in the amendment passed by this amendment in the other place and which my noble House—deadlines that would have served in practice friend Lord Hailsham’s amendment now seeks to cover. to make it harder to negotiate the best possible deal First, if Parliament rejects the deal, a statement must for the UK. Importantly, we removed Parliament’s now be made within 21 days and a Motion must be power to give binding negotiation directions to the tabled in both Houses within seven sitting days of that Government. As we discussed at length on Report, statement. Alternatively,if the Prime Minister announces this would represent a profound constitutional shift before 21 January 2019 that no deal can be agreed with regarding which branch of the state holds the right to the EU, a statement must be made within 14 days and act in the international sphere. It would also be totally a Motion must be tabled in both Houses within seven impractical. The Government cannot demonstrate the sitting days of that statement. Finally, if no agreement flexibility necessary for a successful negotiation if they has been reached by the end of 21 January 2019, a are beholden so directly to the House of Commons. statement must be made within five days and a Motion Significantly, this is a point of principle accepted by must be tabled in both Houses within five sitting days those on both sides of the debate, including my right of 21 January. That will happen whatever the state of honourable and learned friend Dominic Grieve. It is the negotiations. also worth repeating the comment of Vernon Bogdanor, The significance of these additional provisions speaks a constitutional expert quoted by the Secretary of for itself. Our amendment creates a formal structure, State in the other place, that such a provision would be set out in law, for Parliament to express its views in all a “constitutional absurdity” that, would “weaken the the various outcomes that might come to pass in our position” of Britain’s negotiators. exit from the EU. It also passes the three tests set out So I am disappointed to see an alternative amendment by the Prime Minister: it does not undermine the on the Order Paper, tabled by my noble friend Lord negotiations, it does not alter the constitutional role of Hailsham, which resurrects this provision and reflects Parliament in relation to international negotiations, an amendment tabled in the other place by Dominic and it respects the result of the referendum. I should, Grieve—although noble Lords will no doubt have of course, say again that we are confident of achieving noticed that he himself said in a television interview a deal, and indeed a good deal, that Parliament will yesterday that, “The idea that Parliament should be want to support. Therefore, we do not believe that able to mandate, to order, the Government to do these provisions will be needed, but the amendment is something … was going too far”. The House will offered none the less. be aware that my noble friend tabled manuscript Questions have been asked in recent days about Amendment 19P earlier this morning, so I will leave it whether the Motions offered in the Government’s up to him to advise the House which of the two amendment would be amendable. It is not for me to amendments he intends to move. comment on the procedures of the other place, but the 1883 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1884 amendment before your Lordships’ House today offers (b) the framework for the future relationship between the EU those Motions in “neutral” language and that the and the United Kingdom after withdrawal. House of Lords hold a take-note debate, which, as (5F) A Minister of the Crown must, within the period of five noble Lords will know, we do not amend. Such language days beginning with the end of 21 January 2019— ensures that they are not a vehicle for doing what my (a) make a statement setting out how Her Majesty’s Government right honourable and learned friend Dominic Grieve proposes to proceed, and described as “going too far”in directing the Government (b) make arrangements for— to a specific course of action. It is also consistent with (i) a motion for the House of Commons to approve the the role assigned to your Lordships’ House by my statement mentioned in paragraph (a), to be moved in that House noble friend Lord Hailsham’s Amendment 19, which by a Minister of the Crown within the period of five Commons provided for this House only to consider a Motion sitting days beginning with the end of 21 January 2019, and and left approval to the elected House. I beg to move. (ii) a motion for the House of Lords to take note of the statement mentioned in paragraph (a) to be moved in that House by a Minister of the Crown within the period of five Lords sitting Motion F1 (as an amendment to Motion F) not moved. days beginning with the end of 21 January 2019. (5G) A statement under subsection (5F)(a) must be made in The Lord Speaker (Lord Fowler): Motion F1 has writing and be published in such manner as the Minister making not been moved. Therefore, Motion F2 falls. it considers appropriate. (5H) For the purposes of this section— (a) a statement made under subsection (4), (5C)(a) or (5F)(a) Motion F3 (as an amendment to Motion F) may be combined with a statement made under another of those provisions, Moved by Viscount Hailsham (b) a motion falling within subsection (5A) (a), (5Q(b)(i) or (5F)(b)(i) may be combined into a single motion with another Leave out “19C to 19L” and insert “19C to 19E, motion falling within another of those provisions, and 19G to 19L and 19P” (c) a motion falling within subsection (5A)(b), (5C)(b)(ii) or 19P: Before Clause 9, line 37, at end insert— (5F)(b)(ii) may be combined into a single motion with another “(5A) A Minister of the Crown must make arrangements motion falling within another of those provisions.” for— (a) a motion for the House of Commons to approve the statement mentioned in subsection (4), to be moved in that House Viscount Hailsham (Con): My Lords, I shall formally by a Minister of the Crown within the period of seven Commons sitting days beginning with the day on which the statement is move Motion F3, which is on the supplementary list. made, and As your Lordships know, it is a manuscript amendment (b) a motion for the House of Lords to take note of the which I tabled this morning. For reasons of convenience, statement to be moved in that House by a Minister of the Crown I shall refer to Motion F3 as “Grieve II”. We also have within the period of seven Lords sitting days beginning with the a Grieve I, but I shall come to that. I shall also day on which the statement is made. comment on the Government’s Motion F, which is the (5B) Subsection (5C) applies if the Prime Minister makes a Government’s amendment. As your Lordships have statement before the end of 21 January 2019 that no agreement in just heard, I do not move, and have not moved, principle can be reached in negotiations under Article 50(2) of the Motion F1 which is on the Marshalled List and was Treaty on European Union on the substance of— tabled on Friday, and which I will refer to as Grieve I. (a) the arrangements for the United Kingdom’s withdrawal By way of brief explanation before I come to my from the EU, and substantive comments, I say that Grieve I, which is the (b) the framework for the future relationship between the EU and the United Kingdom after withdrawal. Motion that I have not moved, was the amendment tabled by Mr Grieve in the House of Commons. It was (5C) A Minister of the Crown must, within the period of 14 days beginning with the day on which the statement mentioned before the House of Commons on 12 June: it was in subsection (5B) is made— discussed but never voted on. Grieve II, the Motion to (a) make a statement setting out how Her Majesty’s Government which I am now speaking and will formally move, proposes to proceed, and reflects the agreement that Mr Grieve believed he had (b) make arrangements for— made with the Solicitor-General. Mr Grieve thought that Grieve II was agreed to, but it appears that senior (i) a motion for the House of Commons to approve the statement mentioned in paragraph (a), to be moved in that House Ministers objected and it has now been repudiated. By by a Minister of the Crown within the period of seven Commons moving Grieve II—or Motion F3 on the supplementary sitting days beginning with the day on which the statement list—I am asking your Lordships to make a decision mentioned in paragraph (a) is made, and which will enable the House of Commons to vote on (ii) a motion for the House of Lords to take note of the what Mr Grieve believes was agreed with the Government. statement mentioned in paragraph (a) to be moved in that House That is the purpose of my amendment. by a Minister of the Crown within the period of seven Lords On 30 April this year, this House passed by a very sitting days beginning with the day on which the statement mentioned in paragraph (a) is made. substantial majority what has been described as the “meaningful vote” amendment. On that occasion I (5D) A statement under subsection (5B) or (5C)(a) must be made in writing and be published in such manner as the Minister explained at some length my reasons for advocating a making it considers appropriate. truly meaningful vote. I am quite sure that I will be (5E) Subsection (5F) applies if, at the end of 21 January 2019, forgiven if I do not repeat myself. I would like, however, there is no agreement in principle in negotiations under Article 50(2) if I may, to explain why I am moving Grieve II, of the Treaty on European Union on the substance of— indicate briefly what the amendments provide, and say (a) the arrangements for the United Kingdom’s withdrawal again briefly why I hope that your Lordships’ House from the EU, and will support Grieve II, the Motion I am moving. 1885 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1886

[VISCOUNT HAILSHAM] But Grieve II sets out the agreement which Mr Grieve The first question is: why am I moving Grieve II? believes he made with the Solicitor-General, negotiating On 12 June, the House of Commons considered the on behalf of the Government. If your Lordships Bill as amended by this House. Mr David Davis, as he approve Grieve II, the House of Commons will have was perfectly entitled to do, put down an amendment an opportunity to consider and approve the agreement that substantially altered your Lordships’ meaningful negotiated in good faith between the Solicitor-General vote amendment. Mr Davis’s amendment was itself and Mr Grieve. the subject of an amendment moved by Mr Dominic Grieve and that amendment is Grieve I, which I have Lord Robathan: I am grateful to my noble friend. not moved but which gave Members of Parliament the He is indeed a friend. I have always found him both power to prevent the United Kingdom crashing out of highly intelligent and very entertaining. However, on a the European Union and, in the event of such a risk point of clarification, can he say whether it remains arising, to instruct the Government on what to do his position that he wishes at all costs to destroy next. I accept, and Mr Grieve accepts, that the words Brexit? used in subsection (5C) of Grieve I are both directional and mandatory. Noble Lords: Oh! It seemed to everybody in the House of Commons that Grieve I was likely to carry, and in order to Lord Robathan: Can he say whether he wishes to forestall this the Government, in the person of the destroy Brexit—that is not a very parliamentary gesture, Solicitor-General, offered negotiations. What he said, if I may say so to the noble Lord opposite—and that of course, appears in Hansard. Of Mr Grieve he said, this amendment is in fact about sabotaging Brexit? “I think that there is much merit in the approach that he urges the House to adopt in subsection (5A). I need more time to think That seems to be the case. On a second point of about the other parts of the amendment … but by indicating my clarification, can he tell us what discussions he has had position on a key part of it, I am indicating that the Government with the Opposition Front Bench on this amendment? are willing to engage positively ahead of the Lords stages”. Viscount Hailsham: Yes, it is perfectly true that I He went on to say of Mr Grieve’s comments: have had negotiations and talks with the Opposition “They will form a clear basis for a formal set of discussions that we can start at the earliest opportunity”.—[Official Report, Front Bench, and with the Liberal Democrats and Commons, 12/6/18; cols. 766-67.] many Cross-Benchers. I make absolutely no apology for that. This is the high court of Parliament and we As a result of the Solicitor-General’s intervention, are not party hacks. your Lordships’meaningful vote amendment was defeated and Grieve I was never put to the vote. Noble Lords: Hear, hear! Following the undertaking given by the Solicitor- General,negotiationswerecommenced.Thesenegotiations Viscount Hailsham: My noble friend’ssecond question included a meeting with the Prime Minister. It is reported was whether I am seeking to frustrate Brexit. I do not by those present at that meeting that the Prime Minister believe in Brexit, that is perfectly true. I think it is a herself gave a personal assurance to those present that national calamity. But I believe above all that the their concerns about the risk of a no-deal Brexit would House of Commons should have a decisive say one be addressed. way or another. I have known Mr Grieve for very many years. He is Moving on from that point, which I had the pleasure a man of the utmost personal and professional integrity. of making to my noble friend— I accept without reservation what he has said about those negotiations. I say in passing that the attacks on Lord Garel-Jones (Con): Is it not the case that the Mr Grieve in last week’s press, especially the Daily point my noble friend is making about Parliament has Mail, were disgraceful and the authors ought to be already been made with great clarity by the Supreme thoroughly ashamed of themselves. Court—that Parliament approved the referendum but As reported in the Times on 15 June, Mr Grieve did not approve the outcome? said: Viscount Hailsham: My noble friend Lord Garel-Jones “We had very sensible negotiations and thought we had reached an agreement and then they phoned and said that they had to was one of the best Deputy Chief Whips I have ever make the motion unamendable. For the life of me I can’t understand met—better even than my noble friend. Of course, he why … It is utterly bizarre”. is right. But the point is that this Government have On 16 June the Times reported the following conversation: sought to prevent a meaningful vote in every possible asked if he had been tricked by the Prime Minister, way. I want to ensure, if I can, that Parliament in fact Mr Grieve replied that, has a meaningful vote. I do not want to see it left to “when it came to the end, she wasn’t—for some reason—in a chance. position to deliver”. I need to turn briefly to what the amendments I was in direct contact with Mr Grieve throughout before your Lordships’ House say. I commented on Tuesday. I can confirm from my own knowledge Grieve I, which is not before the House. I have already that until the afternoon of that day, he was confident summarised it and I acknowledge that it was directional that he could achieve a sensible accommodation. and mandatory. That caused serious problems for the Grieve I, which I have not tabled, is the amendment Government, which Mr Grieve understood. It was for that was before the House of Commons on 12 June. It that reason that Mr Grieve was negotiating with the would probably have passed but it was never voted on. Solicitor-General. Grieve II—that is the Motion before 1887 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1888 your Lordships’House, and here I am referring effectively Lord Forsyth of Drumlean (Con): My Lords— to subsection (5F)—requires the Government, in the absence of any political agreement having been made Viscount Hailsham: I am not going to give way. by the end of 21 January next year, to make a statement Much as I admire my noble friend, I am now going to setting out how they propose to proceed and to make proceed. I come to the last and fundamental question: arrangements for the House of Commons to approve why should this House support Grieve II? There are the statement by way of a Motion. essentially three reasons for that. The first is this—if I I have taken the best advice available to me. I can find it in my notes. believe that the Motion in the House of Commons would be amendable but not justiciable—that is to say, the Motion could not be enforced by legal action. Lord Robathan: Let the noble Lord, Lord Forsyth, However, the political consequences for a Government intervene. who sought to act differently from the Motion, whether amended or not, would be very grave. In that respect, Lord Forsyth of Drumlean: My Lords— Grieve II gives Parliament and, in particular, the House of Commons a meaningful vote. Viscount Hailsham: That is very kind of my noble 4.45 pm friend but he has given me an opportunity to find my notes, so while I am grateful to him he is going to have Lord Grocott: The noble Viscount talks about the to resume his seat. The first reason is this: the House political consequences of votes. Given that leaving the of Commons has never had an opportunity to vote on European Union has been the central objective of this the amendment, so it is a matter of procedural propriety. Government since their election, does he not acknowledge Secondly, the Government have failed to deliver on that should they lose a vote enabling them to leave the their promise to provide a meaningful vote. Grieve II European Union the inevitable political consequence represents the agreement negotiated in good faith would be that the Government would fall? between the Solicitor-General and Mr Grieve but which others thought fit to reject, so it is a matter of Viscount Hailsham: I am simply not going to speculate. honour. The truth is that the world at the moment is extraordinarily Thirdly, and by far most importantly, it is in the unpredictable and all the parties are extremely divided national interest. I appreciate that the Prime Minister on this issue, so I think it is wise not to speculate about faces great difficulties in the conduct of these matters. what would happen if the Government lost, save to There are serious divisions within her Government, say that the political consequences would be very divisions reflected within all the parties and indeed great. within the country itself. However, consider where we However, I want to consider what the Government are and how we got here. The Article 50 process was are offering by way of an alternative—in other words, triggered without any collective agreement as to the how the Government are proposing to honour their desired outcome—indeed, without any collective repeated promise to give Parliament a meaningful agreement as to the negotiating framework. Now, just vote. What is on offer—and it is only this—is as a few months before the deadlines expire, that remains follows. In the event of no deal—that is to say, when the situation. there is every probability of the United Kingdom This is not an occasion for anything other than crashing out of the European Union, an outcome temperate language—the political temperature is already which in the eyes of most would be a calamity—the far too high—so I shall content myself with questions. Government are offering a Statement followed by an Was it wise, prudent or responsible to start the Article 50 unamendable take-note Motion. My noble friend’s negotiations without a firm collective agreement as to amendment—she did not refer to its terms when she where we wanted to go or how we were to get there? first introduced it—is that the take-note Motion should Was it perhaps a serious error of judgment to trigger be in neutral terms. What is meant by “neutral terms”? the Article 50 procedure without there being a clear It means that it may not express approval, it may not policy on these matters? Is it right that, in the absence express disapproval and it will not be subject to of a deal, Parliament should risk crashing out of the amendment. The Government’s amendment not only EU on the basis of a take-note Motion cast in neutral fails to deliver the promised meaningful vote—that terms and as a result of the unconstrained decisions of would be an act of omission and bad enough—but is Ministers—these Ministers? far worse as the Government are seeking to make the Your Lordships’ answer to those questions may promised meaningful vote impossible, and that is an help you to decide whether, to safeguard our nation’s act of commission, contrary to what Ministers have vital interests in the event that there be no deal on the on many occasions promised. It deliberately removes table, Parliament—and here I mean the House of the possibility of a meaningful vote and, moreover, Commons—should have the authority to intervene. the Government’s amendment is being brought forward Ministers, the Prime Minister in particular,have promised at least in part by my noble friend Lord Callanan, who a meaningful vote. As yet, that promise has not been on 14 March in this House, to the amazement of honoured. My noble friend’s amendment frustrates, everybody who heard him, said: and is intended to frustrate, that commitment. If your “We have never used the term ‘a meaningful vote’”.—[Official Lordships want Parliament to have a truly meaningful Report, 14/3/18; col. 1650.] vote then Parliament must insist, and the Grieve II That statement was inaccurate as to fact, but deeply amendment would enable the House of Commons to revealing as to intention. do that. I beg to move. 1889 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1890

I apologise to the House that this is a manuscript Motion F4 (as an amendment to Motion F3) amendment laid before you. That is because my noble Moved by Lord True friend tabled an amendment last week which gave the To amend Amendment 19P as follows— House of Commons wide-ranging—one might say 19Q: At end insert— Cromwellian—powers to direct the Government by “(5J) Any motion or resolution approved by the House of resolutions, which he called Grieve I. They would in Commons or debated by the House of Lords under subsections (5A), effect be the kind of orders beloved of the Long (5C)(b), or (5F)(b) may not have the effect of binding Her Parliament in the 1640s. That was plainly unacceptable, Majesty’s Government to prevent or delay the United Kingdom’s as my noble friend has acknowledged. I laid an withdrawal from the EU on exit day.” amendment, the defunct Motion F2, last Friday, to prevent any such direction. I thought that was the end Lord True (Con): My Lords, I beg to move my of the matter and that we would debate it today. amendment as set out on the supplement to the However, a weekend is clearly a long time in politics, Marshalled List. because what my noble friend thought on Friday he My noble friend Lord Hailsham has just indulged disavowed this morning. This morning my noble friend us with some Disraelian oratory on a Gladstonian telephoned me—from an interesting place, actually; scale, as far as time goes. I shall try to be a little more we have heard about these contacts with the party direct. I have to say to my noble friend that people opposite—to say that he was withdrawing his amendment outside this House and Parliament are getting a little and putting down another one that on the face of it tired of the parliamentary games here and the arcane was more limited in scope. language of the parliamentary discussions that go on. I do not flatter myself that I had anything to do They are less interested in the rodomontade that we with this rethink. Indeed, we have heard in all candour heard from my noble friend about who said what to from my noble friend the reason for it. He was instructed whom when. They actually want to know when they to make the change by Mr Dominic Grieve. are going to get Brexit, when it will be delivered, when it will be done. Noble Lords: No. If I may be direct with my noble friend—he is my 5 pm noble friend—he is wrong. All the talk we have heard today lets the cat out of the bag: Grieve I, Grieve II, Lord True: This is the truth. It has actually been Grieve this, Grieve that. All this talk suggests to me stated in terms by the noble Viscount. There seems to that my noble friend is acting as the representative on be a tremendous frisson in the House when one talks earth of Mr Dominic Grieve—if your Lordships’ about Mr Dominic Grieve. How many times in the House could ever be described as earth; I would not speech of the noble Viscount did he adduce the name wish to offend your Lordships by suggesting that it Dominic Grieve? was anything other than heaven to be here. Perhaps I Noble Lords: Oh! should say Mr Dominic Grieve’s representative here in heaven. Lord True: Is it unacceptable? No, I am not giving This House should not be taken for granted as an way. I did not catch the remark opposite but I make enforcement posse for any individual, whether in the point that it is perfectly reasonable for me to Parliament or anywhere else. It is interesting that the address issues surrounding the same person. Mr Dominic opinions of your Lordships are so taken for granted Grieve claims that he does not wish to delay or frustrate by that faction in the House of Commons that it is Brexit—the same thing that is said by all those in that already openly talking about what will happen when group. However, it seems to me that he is so assiduous my noble friend’s amendment comes back. I submit in wanting to that he even takes time to go to the that in this House’s greatest days, your Lordships were offices of the European Commission to report to never taken for granted in that way. It was never Mr Alastair Campbell on progress.He is so worried about considered that your Lordships were a tale foretold or leaving the European Union that he declares himself lobby fodder for someone else’s interest. This House ready to “collapse the Government”. There is no doubt has made abundantly clear that it is unhappy about that the noble Lord, Lord Grocott, is right: if the Brexit. I do not think you need to be a reader of the Government were unable to achieve the central purposes Daily Mail to know that the House of Lords is unhappy of the Administration they would be in jeopardy. in the majority about Brexit, although I do not agree on “Collapse the Government”—hold that in your Lordships’ that. But there comes a point when enough is enough. minds when you consider with whom you wish to Today, having listened to my noble friend the Leader align yourselves. Is that the game that your Lordships, of the House and the very reasonable tones that she in this unelected House, wish to play? used in opening this debate—far from the clarion calls We hear time and again—we heard it again today we heard afterwards—we should be cautious about from others—that none of their actions is intended to lending support to those whose tactics will inevitably delay or prevent Brexit. However, when I see some of end by weakening the Government and undermining the actions, and hear some of their words, I have to the United Kingdom’s negotiating position. Whatever say: you could have fooled me. I doubt that they are your position in the argument, no good will come fooling the good people of Sunderland or Stoke. All from perpetuating uncertainty by offering Motions that I ask is this: if they do not wish to delay or and resolutions in perpetuity that might alter the prevent Brexit, let them be as good as their words and United Kingdom’s position. That weakens our position make it clear that none of the Motions they talk about at the negotiating table, and I do not think that your would frustrate it. I freely accept that my amendment Lordships should do that. might not be the best way of accomplishing this, but it 1891 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1892 is one way—one that I hope will be given consideration, the other place to amend and offer an amendment in if not in your Lordships’ House then by others. My lieu. The matter can be decided. It is time for each and amendment is simply an attempt to reflect in law what every one of us to be clear where we stand, and where the people behind this amendment say they want; that we think this House of Lords should go. This House is, not to delay or prevent Brexit. has gone a long way and made its voice heard; it has carried many of the arguments for the remainer cause. I will not enter into the constitutional rights and Do we wish to go on delaying, preventing and wrongs of my noble friend’s aspiration to give the prevaricating when the Government have made the House of Commons potential control over the offer on the Marshalled List that we have today? Do Government in negotiations, which an amendable Motion we wish to be accessories before the fact in parliamentary would do. However,I believe that to be utterly impractical games to delay resolution and weaken this country’s and totally unconstitutional. It is ridiculous—utterly negotiating position for months and months ahead, or ridiculous—to conceive that the House of Commons, do we say,“My Lords, it’stime enough—let the Commons with over 600 diverse opinions and meeting in public, decide on the matter that the Government have put is capable of determining effective negotiations with before us in lieu”? I beg to move. the European Union, or indeed the Republic of Vanuatu. It is inconceivable and absurd. Lord Howard of Lympne (Con): My Lords, this is The simple question before noble Lords on these not a debate about the integrity of Mr Dominic Grieve, amendments is whether any resolution or Motion and I shall do my very best to avoid mentioning his outside an Act of Parliament should be capable of name again. It is a debate on the terms of the amendments delaying or preventing the United Kingdom’s departure before your Lordships’ House this afternoon. My from the European Union, which an amendable Motion noble friend the Leader made a cogent and compelling of the type proposed by my noble friend may well, or case for the government amendments and I do not should it not? I submit that it should not. I submit that intend to elaborate on it at any length. She made it it is time for us to respect the votes—and listen to the clear that the effect of the amendment in the name of roar that goes up—of 17.4 million of our fellow country- my noble friend Lord Hailsham would be to confer on men and women in the referendum. For me, at least, Parliament a negotiating power that has always resided those votes had meaning, profound meaning. I submit in the hands of the Executive in our country. That is that we should respect the 27.5 million votes given at why, as my noble friend the Leader said, Professor the last general election to parties promising to deliver Vernon Bogdanor has described the amendment as a what the British people had voted for, including the “constitutional absurdity”. It is a measure of the Front Bench opposite, who dive and duck to get out of weakness of the case put forward by my noble friend the commitments that they gave at that general election. Lord Hailsham that he was driven, in the end, to For me, those votes at that election had meaning, impugn the validity of the Article 50 vote in the House profound meaning. I submit that no parliamentary of Commons—a vote passed by a very large majority manoeuvre, no resolution and no Motion such as my in the very House whose cause he purports to champion noble friend’s amendment envisages should be permitted as the basis of his amendment. to have the effect of removing from the British people I want to elaborate briefly on a point just made by or eroding their opportunity to have what they asked my noble friend Lord True. My noble friend Lord for with awful clarity—leave. Frankly, no huddled Hailsham said, at the very outset of his speech, that meeting in Smith Square should be permitted to kick the purpose of his amendment was to give the House the aspirations of the majority further down the road. of Commons the opportunity to consider it. It is a This great House should not, by supporting my simple and irrefutable fact that the House of Commons noble friend, give those who wish to frustrate Brexit a will have that opportunity without passing my noble blank cheque to write on. My own amendment is friend’s amendment. The House of Commons will entirely without prejudice to whatever each of your have that opportunity if the Government’s amendment Lordships maydecide on the noble Viscount’samendment. is passed, because that amendment has not been The real question is on his amendment. Do your considered by the other place. So, when the Government’s Lordships, including noble Lords on the Cross Benches, amendment comes to the other place, it will be open to want to be party to further games of “collapse the them to accept it, reject it or amend it. They can Government”, or do we accept, as I do, that the amend it in the terms of the amendment put forward Government have in Motion F made a serious attempt by my noble friend Lord Hailsham. The very purpose to compromise on which the House of Commons of his amendment— should now be allowed to decide? For my part, I think that the Government have gone far and tried long to Baroness Smith of Basildon: My Lords— meet the concerns expressed in another place, in your Lordships’ House and outside—further, actually, and Lord Howard of Lympne: I will give way when I longer than some of us might wish. But the Government have finished my sentence. The very purpose of the are to be commended for that, and I shall support amendment put forward by the noble Viscount can be them on their amendments. achieved without its passing. I add one final thing. Look at the Marshalled List Baroness Smith of Basildon: I apologise to the noble and the width and breadth of the amendment laid by Lord for interrupting, but I may be helpful on House the Government in line with Motion F. It is perfectly of Commons procedure. If an amendment goes from possible that that amendment from the Government this place to the House of Commons and is amended, goes back to the other place and perfectly possible for the chances are that the only amendment that could be 1893 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1894

[BARONESS SMITH OF BASILDON] There has been an extraordinary set of manoeuvres voted on is a government one. At the moment of in the House of Commons. I see that my noble friend interruption, only government amendments are voted Lord Dobbs is in his place. As the author of “House on. Back-Bench amendments would not be voted on. of Cards”, he must have wondered whether he had been given a whole lot of new episodes when we saw Lord Howard of Lympne: The operative phrase in the Chief Whip, not chucking people off the roof of the noble Baroness’s observation was “the chances the Palace of Westminster but crawling on his knees, are”. I believe that, if the House of Commons wished rather like a courtier at the court of the King of to consider the amendment in the terms put forward Siam—the role of the king being played by the right by the noble Viscount, it would be able to do so. honourable and learned Dominic Grieve. After all these negotiations—I cannot comment on Lord Cormack: The noble Baroness was right. It what was said or not—it is clear that the Government should be desirable that the other place could do what have moved a very long way indeed. If we take Grieve I, my noble friend wants, but the rules of that House version 1, the Government have accepted proposed would preclude it. new sub-paragraphs (5A) and (5B), which would have been inserted at line 37, although there is still some Lord Howard of Lympne: I am afraid that I disagree difference on proposed new subsection (5C) of Grieve I. with my noble friend. As we know, the Speaker of the I appreciate that my noble friend Viscount Hailsham House of Commons is very eager these days to allow has also moved in his latest manuscript amendment, all sorts of amendments to be put. because he has moved away from the specific word “direction” to the issue of amendment instead; I have Noble Lords: Oh! a question for the Leader of the House about this, Baroness Boothroyd (CB): The noble Lord is sometimes which I will put to her in a few minutes. One is bound very eager to give way. The noble Baroness the Leader to ask, as the noble Lord, Lord Grocott, hinted, why of the Opposition is absolutely correct in what she says. we have this extraordinarily convoluted process here, with a codification of what will happen at each stage. I 5.15 pm know that people are very suspicious, but is this really Lord Howard of Lympne: The noble Baroness said necessary in parliamentary procedure when we could “the chances are”; that was the operative phrase in her easily, at any stage, have Motions of censure or Motions remarks. of no confidence? The very prospect of a Motion of It is often said in our debates that the purpose of no confidence is bound to concentrate the Government’s the amendment put forward is to give the other place mind. There are many ways in which the House of the opportunity to think again. It is a powerful argument, Commons can hold the Government to account and, which has influenced many of your Lordships in putting as the noble Lord, Lord Grocott, said, there are many forward amendments and in voting for them. I submit ways, other than this very complicated process, in that it is not necessary to defeat the Government to which the Government can be held to account. achieve that objective with these amendments. It is important to be clear about the exact differences. I shall say one more thing before I sit down. Many There have been many modifications, with Grieve I, of your Lordships—conspicuously not my noble friend Grieve II and the amendment put forward by the Lord Hailsham—have vociferously denied any intention Government, but what are the differences from the to delay Brexit. The amendment tabled by my noble changes that have been made? One is that they give friend Lord True gives effect to those denials. The only the Government more control over the timetable, and people who need have any concern about the effect of another is the use of the word “neutral”. The Leader the amendment put forward by my noble friend are of the House, in moving the government Motion, those who indeed desire to delay Brexit. I therefore referred to it being neutral simply to avoid it being congratulate my noble friend on his amendment, and amended. By that, does she mean that, if it were should he wish to test the opinion of the House on it, I amended, that would be tantamount to a direction, as for one will vote in its favour. The one thing that in the original version of Grieve I? Can she comment should not happen is that a message goes out from this on the point raised by my noble friend Lord Hailsham House that this unelected Chamber is determined to about whether that would be justiciable? There was a delay the implementation of the wishes of the British suspicion—I say suspicion but of course it would be a people. very good reason—that the Government had put forward a neutral Motion as an option because they did not Lord Lamont of Lerwick (Con): My Lords, I support want this to be justiciable and did not want to get into the Motion moved by the Minister and oppose that the maze of the courts. I strongly agree with that but I put forward in both versions by my noble friend. He would very much like to hear her comments on it. spoke with enormous force and eloquence; he left very What is the motive for this extraordinarily convoluted little for the day of judgment. I am going to have process? The right honourable and learned Dominic Sunday lunch with him in a few days’ time, and I shall Grieve has said several times that it is to stop what he make sure that I am at the other end of the room, at calls—the word was repeated by my noble friend Lord the other end of the table. Hailsham—the “calamity” of no deal. On 12 June at Noble Lords: Oh! col. 764, Dominic Grieve said that the purpose of his original amendment, if there is no deal, was to provide Lord Lamont of Lerwick: I am going there for a a mechanism whereby it goes to the House. However, I family celebration—his family. cannot think why the right honourable and learned 1895 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1896 gentleman, distinguished as he is, thinks that the Lord Reid of Cardowan: I am grateful to the noble Government, in the event of no deal, could avoid Lord. Can he elaborate on a statement he has just having to discuss it with Parliament. Obviously it made? Four months ago, I asked the noble Lord who would come to Parliament—it would be a major event. will be responding tonight to make it absolutely clear Do we really have to write it down with all these that the sovereignty of Parliament is supreme over complicated provisions? everything that happens in this country, subject always to alliances, and that the sovereignty of Parliament Noble Lords: Yes. could not be undermined by a referendum or by two referendums. Incidentally, for four months, the Minister has refused to respond to communications on this Lord Lamont of Lerwick: Noble Lords opposite are subject. The noble Lord has just said that we “ceded” living in a slight fantasy land if they think we could sovereignty to the people though a referendum. Does reach no deal without there being a very long debate he stand by that? Is parliamentary sovereignty no and a whole set of arguments in the House of Commons. longer supreme in this country? At no stage have I been an advocate of no deal in the negotiations, but not advocating no deal does not mean that we should rule it out in all circumstances, Lord Lamont of Lerwick: Parliament held a debate, and it does not mean that you should rule it out as Parliament voted, and Parliament decided to hold a being on the table as a negotiating tactic. If, as Dominic referendum on this issue and to be bound by that Grieve has suggested, we make no deal completely referendum. Whatever the theoretical constitutional unthinkable, we in effect undermine the position of position of a referendum, many statements were made our negotiators. If our negotiators cannot walk away on both sides that we would be bound by the result of from the table or if the other side—Monsieur Barnier that referendum. and so on—know that they cannot do so, all the other LordGarel-Jones:Parliamentauthorisedthereferendum side has to do is to sit there rejecting things until we but it did not authorise the outcome of the discussions. eventually agree with everything it wants. Ruling out That is what the Supreme Court has ruled. no deal completely as an option, even as a theoretical negotiating objective, would place the Government in Noble Lords: Article 50! an impossible position. Lord Lamont of Lerwick: That of course is what Lord Adonis (Lab): My Lords, the amendment we Article 50 was about but it is also true that, during the are discussing does not rule out no deal; it lays down election and during the referendum campaign, many what will happen if there is no deal. There is a fundamental commitments were made over and over again that we difference between the two. would honour the result of the referendum. The most objectionable part of the original Lord Lamont of Lerwick: But we are also talking amendment, Grieve mark I, was the use of the word about Motions and amendments, and the distinction “direction”. To my mind, it obviously was impractical was the very point I was making. Although my noble for Parliament to direct the Government in every friend Lord Hailsham has removed the word “direction”, aspect of the negotiation if there were a situation in we have to consider what is meant by having amendments which there was no deal. It is one thing for Parliament and the purpose of insisting that a Motion that the to direct our own Government as to what they can Government bring forward should be unamendable. accept or propose, but what it has no control over is The second reason put forward, in addition to what the other side will accept. Therefore, by saying making no deal an impossibility, is parliamentary that Parliament would direct the negotiations, we would sovereignty. I do not wish to be too aggressive about be forcing the negotiators to go to the other side with a this but to many of us this seems a very ironic reason list of things that we knew it would be able to accept, when, for year after year in European matters, and, as I say, all flexibility would be removed from the parliamentary sovereignty has just been ignored. A negotiations. fundamental point, however, that we cannot forget is Then we have the question: if Parliament is going that on this issue we have ceded sovereignty to the to be directed, how will it be directed? There are people of this country. That is what we did when we 650 different Members of Parliament— held the referendum. Noble Lords talk about a meaningful Lord Hannay of Chiswick (CB): My Lords— vote but it seems that they want to make the vote on the referendum meaningless; the vote on Article 50, Lord Lamont of Lerwick: I would like to make a meaningless; and the election itself in which— little progress, if I may.How would the will of Parliament be determined? It would be determined through political Lord Reid of Cardowan (Lab): My Lords— parties in the normal way, put down in the form of Motions in the House of Commons. I put it to the Lord Lamont of Lerwick: I will give way in a House that, really, this long and convoluted procedure minute. Noble Lords want to make meaningless the would have little difference from the way Parliament result of the election, in which the overwhelming would behave without this amendment being put in majority of people voted for parties wanting to support place at all. the result of the referendum. These were all meaningful Subject to the clarification from the Leader of the votes as much as anything that is proposed in this House about the Motion being justiciable and the amendment. reasons why we want it to be unamendable, I strongly 1897 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1898

[LORD LAMONT OF LERWICK] I look forward to an explanation from the noble support the amendment tabled by the Government Viscount, Lord Hailsham, or one of his noble remainer and urge the House to reject that put forward by my friends, as to why they want to go on with it and how noble friend Lord Hailsham. they have the nerve to pray Parliament in aid of their desire to do so. Lord Pannick: My Lords, the noble Lord asks about justiciability. It is one of the most fundamental Baroness Ludford: My Lords, as the noble Viscount, principles of our constitution that the courts do Lord Hailsham, said, it is in the national interest that not and will not regulate proceedings in Parliament. Parliament should not be faced by a take-it-or-leave-it Therefore, a court would presume, in the absence of vote. It must be able to prevent a slide into a disastrous the clearest statement to the contrary, that none of no deal outcome. I say to the noble Lord, Lord True, these amendments—in particular Amendment F3—is that is not an arcane interest because many ordinary intended to depart from this fundamental principle. citizens would be hugely harmed, including those who That is especially so when the mover of the amendment voted for Brexit, if that happened. makes it clear that he does not intend to depart from that fundamental principle. In answer to the question Was not the referendum fought by the leave side from the noble Lord, Lord Lamont, it seems to me partly on the basis of a need for the Westminster that the sanctions for any breach would be political, Parliament to take back sovereignty? It is truly ironic but they certainly would not be legal. that many of those who said that oppose a meaningful vote for Parliament now. Indeed, some noble Lords 5.30 pm opposite who have spoken want specifically to hobble Parliament by barring it from amending a Motion. Lord Pearson of Rannoch (UKIP): My Lords, I This is not a remainer cause. It is not about destroying remind the noble Viscount, Lord Hailsham, and those or sabotaging Brexit—that is a distortion and noble Lords who, in reality, want us to stay in the misrepresentation—but about whether Parliament has European Union, that a referendum in 1975 confirmed a constitutional right and duty to call the Government our membership of the then European Community to account and should have a decisive political role on and that our recent referendum decided we should the course of Brexit. The idea that that undermines leave it. A Written Answer to me on 9 January this the Government’s negotiating position is farcical. year revealed that some 20,000 pieces of EU law have The noble Lord, Lord Spicer, said that the essence been imposed on this country since 1973 and there of why he opposed staying in the EU is that the nation was nothing the Commons or your Lordships’ House state is the best unit for democracy, that Britain is could do to stop it. The noble Lord, Lord Lamont, the home of democracy and that it offers a forum referred to this. How do those who accepted the result for accountability. That is the point. That is what of that first referendum and approved all those laws Motion F3—I avoid “Grieve II”—achieves. It is not a from the anti-democratic EU law-making system now negotiating power for Parliament but a power to call think that Parliament should decide the manner of the Government to account for how they are conducting our going? the Brexit negotiations. Its purpose is to prevent or at I wonder how many of our people understand how least manage a crisis by thinking ahead of that time anti-democratic that system is and whether the result and what the structures would be. The virtue of writing may have been even more in favour of leaving if they this into the Bill is that we will then know what had known it. Indeed, I am tempted to wonder how mechanisms need to be followed if a crisis arises. As many of your Lordships’ understand it. To test that the noble Viscount, Lord Hailsham, said, it is important knowledge,I ask noble Lords who know what COREPER to give the Commons the opportunity to vote on what is and what it does to raise their hands—former Eurocrats the Government apparently agreed last week. excluded. Not many—in fact hardly any. I will explain I have great admiration for Dominic Grieve as a what it does. It is our most— parliamentarian and constitutional lawyer of the highest calibre and integrity. He is a loyal Conservative, much Lord Hannay of Chiswick: I merely wish to ask the to the regret of some of us because we would like him noble Lord whether he is asking the House to play a to be a little more of a rebel. I associate myself with game of Trivial Pursuit. the remarks of the noble Viscount, Lord Hailsham, about the character of Mr Grieve and that the hatchet Lord Pearson of Rannoch: My Lords, the pursuit job on him by the Daily Mail was a total disgrace. It will be far from trivial when the answer is seen. showed the degradation of our political media culture It is our most significant law-making body. After all and discourse. EU legislation has been proposed, in secret, by the The noble Lord, Lord True, said that his amendment unelected Commission, it is then negotiated, still in was not the best way to accomplish what he wants. I secret, in the Committee of Permanent Representatives, do not need to elaborate any further. It would unhelpfully or COREPER. Now most of your Lordships know complicate matters. I will accept the guidance of a what it is. When it has finished, the legislation goes to former Speaker, the noble Baroness, Lady Boothroyd, the Council of Ministers, where the United Kingdom on Commons procedure, which I do not understand, has been outvoted on every single piece of legislation that it is necessary to pass Motion F3 to allow the that we have opposed in the past 10 years. That is the other place to consider how it wants to proceed. system which has resulted in those 20,000 laws being passed, with our Parliament wholly irrelevant. Baroness Hayter of Kentish Town (Lab): My Lords— 1899 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1900

Lord Cavendish of Furness (Con): My Lords— Let me briefly put to rest the idea that the Hailsham amendment could risk what the Prime Minister and David Davis—perhaps quite rightly, along with the Viscount Younger of Leckie (Con): My Lords, I noble Baroness, Lady Evans, today—say they do not believe the House now wishes to hear from the Front want, which is to hamper the negotiations. The whole Bench. point is that the vote would come at the end of the process, after the negotiations, to vote on the outcome. Baroness Hayter of Kentish Town: My Lords, we It is exactly the same as what the European Parliament’s heard a sad story from the noble Viscount, Lord vote to consent will be: it will be on the final—albeit at Hailsham, about the saga that has gone on. I say to the that point unsigned—deal. noble Lord, Lord True, who said that this was about Perhaps I may also put to rest a misunderstanding playing parliamentary games, that no, this is much that we have heard from Jacob Rees-Mogg—he is more serious. If anyone wants to know how big the meant to be an expert, but never mind. He asserts that issue in front of us today is, they should look around Parliament will get its vote on the deal by agreeing or the Chamber. not agreeing to the withdrawal and implementation Last week we heard, around the debate in the Bill, which he claims is the device for bringing the Commons, that the Prime Minister had conceded that treaty into our law.This is fundamentally to misunderstand within seven days of the Government agreeing a both that Bill and the deal. Under Article 50, the withdrawal deal with Brussels, a Motion to approve withdrawal agreement must also take account of the the deal would go to the Commons; and, should there framework of the future relationship between the parties. be no withdrawal deal by 30 November,the Government However,that will not be included in the implementation would have to seek approval for their next course of Bill because it will cover only citizens’ rights, possible action from MPs—not direction, approval. payments, Northern Ireland and the transitional We then learned that the various Conservative Back- arrangements. In other words, the withdrawal and Bench MPs who were concerned were given to understand implementation Bill is the divorce proceedings—it is that Mrs May would consider how to capture those not the long-term relationship. That Bill will not be the demands and table the necessary amendment here in confirmation of the withdrawal agreement and is not your Lordships’House today.Instead, in the Government’s a substitute for what we are asking for today. Unless Motion F1, we have no proposal for a vote on the and until this Bill guarantees a proper vote on the Brexit deal but simply a vote on a Motion—in neutral deal, the long-term future of this country will remain terms, I understand from my parliamentary draftsmen solely in the hands of the Prime Minister and her advisers that this is not a term that exists anywhere extremely divided Cabinet, not in the hands of Parliament. else in law, but be that as it may—that the statement Without the amendment in the name of the noble on the deal has been considered. There would be no Viscount, Lord Hailsham, we will be in a position seven-day commitment or any other time commitment where the European Parliament has to give its consent— to a vote, no indication of what would happen should that is, to approve the deal for it to take effect. However, the Commons reject the Motion, and no indication the British Parliament would simply be able to pass a that the Commons would have any say over what Motion that it had considered the deal. What sort of should follow if there is no deal. democratic deficit does that leave this Mother of Astonishingly, government Motion F1 gives the Parliaments with? elected House of Commons less of a say than the This is an area where I am sure that even the noble European Parliament will have on the deal. Under Lord, Lord Spicer, would agree with me. We agree on Article 50, the European Parliament has to give its very little, although I have to say that every time I see consent to the negotiated deal; that is, not just a him in his place, I feel the need to sharpen my arguments Motion to say that it has considered the deal—rather, because I know that he is watching me. I hope that this it has to give consent. We want what the European is not the last time we hear from him, but I think that Parliament has: a meaningful vote. I do not know the one point he would agree with me on is that this which part of the word “meaningful” the Government Mother of Parliaments should get a sovereign vote on do not understand. I am a bit simple-minded because this issue. I think it means something that means something; in The Government have offered us an unamendable other words, something happens as a result. Motion on a statement, but no say on the deal itself. What we want today is really quite straightforward. As has been made clear,we need the House of Commons We want the House of Commons to be able to consider to have a say on the Hailsham amendment; it needs to the Hailsham amendment, so we need to pass it today. have that in place. However, the only way we can do Moreover, we should pass it without the amendment that is for this House to be able to give MPs that in the name of the noble Lord, Lord True, as the opportunity by passing this amendment. It is then up whole point is to send to the Commons the agreement to them what they do with it. which Dominic Grieve and others thought they had reached with the Prime Minister. We have not tried to 5.45 pm tinker with or improve it, but to place absolutely our Baroness Evans of Bowes Park: My Lords, the support behind the Hailsham amendment which Government have fully engaged with the issues that encompasses what they thought they were being offered. have been raised by Parliament and have come back That is what this represents and is what we had expected with a fair, practical and constitutionally sound offer. from the Government. So we will not support Motion F4 Given that my noble friend Lord Hailsham has not if it is pushed to a vote. moved his original Amendment 19M, I shall simply 1901 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1902

[BARONESS EVANS OF BOWES PARK] Europe’sview,the European Parliament and the European reiterate my concerns about his manuscript amendment. Council will get a vote on the final deal. Has that Your Lordships’House has a reputation for high-quality ruined their negotiating position? Not at all—they are scrutiny of the legislation put before it, including in a very strong negotiating position. As for Dominic much good work that we have seen on this Bill, but Grieve, he deserves the parliamentary equivalent of hastily drawn up manuscript amendments do not show the Victoria Cross. this House in its best light. My noble friend Lord Howard of Lympne was Baroness Evans of Bowes Park: On the point of correct to saythat if this House agrees to the Government’s justiciability, I refer to the noble Lord, Lord Pannick, amendment, the other place will be able to take its who expressed the position correctly. own decision. As we have heard, how it does that is of I hope that noble Lords will support the Government’s course up to that House, in particular Mr Speaker. But serious proposals before them rather than the amendment what I can say is that if the other place wants to consider tabled by my noble friend Lord Hailsham. Should the amendments to the Government’s position, it will. House agree to the amendment in lieu, which has been Importantly,I would point out that the Government’s tabled by the Government, the House of Commons amendment satisfies many of the objectives of my will be given the chance to decide the procedure it noble friend Lord Hailsham’s original amendment. wishes to follow for a vote. I ask whether it really is the Subsection (5A) calls for a Motion on any statement right thing for this House, at this stage, to seek to push required under subsection (4); the government amendment this issue further. It should be left to the House of provides for that. Subsection (5B) calls for a Motion in Commons to take its decision. I think that this House the event that no deal has been reached with the EU needs to reflect very seriously on the decision it is by a particular deadline. The government amendment, about to make. while pushing back that deadline by a month and a half, provides that too. The only subsection we have Lord True: My Lords, I listened carefully to the not incorporated is subsection (5C) which would provide debate and I thank all noble Lords who took part. It Parliament with the power to give binding negotiating ranged a bit more widely than my amendment and I directions to the Government. As I have said, that is can see that the House wishes to get to a vote on the constitutionally and practically untenable, and both main question. At some point it would be useful to sides accept that it should not make it on to the statute show publicly, by name, what individuals in this House book. I repeat again that the Government’s amendment think about the specific issue—but that can be addressed before the House today covers the three situations that in a different way on another occasion. I accept the the amendment of my right honourable and learned point made by my noble friend the Leader of the House friend Dominic Grieve sought to achieve in the other that ultimately these questions should be decided in the place and which is covered by the amendment in the House of Commons; I am grateful for what she said. name of my noble friend Lord Hailsham: first, if However, repeating what I said at the outset, we Parliament rejects a deal; secondly, if the Prime Minister have heard a lot about Commons procedure. The announces before 21 January 2019 that no deal can be reality is that, under Commons procedure and the agreed with the EU; and, thirdly, if no agreement has control of Mr Speaker, it would be conceivable for this been reached by the end of 21 January 2019. matter to be addressed as an amendment in lieu without I turn briefly to the amendment in the name of my the support for the amendment of my noble friend noble friend Lord True. Let me say now that I understand Lord Hailsham. As the Leader of the House said, it is the reasons he has tabled it and I thank him for doing not necessary for your Lordships’ House to align itself so. He has also helped to bring an important balance with a faction in the House of Commons with an axe to today’s debate. However, one of the reasons we are to grind— not supporting my noble friend Lord Hailsham is the Noble Lords: Oh! fact that this needs to be settled in the House of Commons, not this House, and that applies to his Lord True: Well, if it is not an axe it is something amendment. I hope, therefore, that he will not press it. else. To ensure that the House of Commons is able to My noble friend Lord Lamont asked whether an decide this matter it is simply not necessary for this amendment to one of the Motions in the Government’s House to vote on my amendment or to support my amendment would be tantamount to a direction as in noble friend’s amendment. Having heard what my Grieve I. This would not be the case as it would not be noble friend said, I beg leave to withdraw my amendment legally binding, but it would still seek to instruct the and I will support the Government on the amendments Government in an international negotiation and would that follow. therefore fail the Prime Minister’s test of not seeking Motion F4 (as an amendment to Motion F3) withdrawn. to tie the Government’s hands in negotiations. On the point of justiciability, I refer to— Viscount Hailsham: My Lords, I sense that this House wants to come to a very early conclusion, so I will conclude by saying a word to my noble friend Lord Bilimoria (CB): I thank the noble Baroness Lord Spicer. He is a very old friend and a very the Leader of the House for giving way. She has distinguished chairman of the 1922 Committee. I will mentioned that agreeing to this amendment would be very sorry indeed if he ceases to appear in this hamper the Government’s negotiations. The noble House, because he has had a very distinguished political Lord, Lord True, has said exactly the same thing. career. I know that your Lordships want to come to an We have known right from the beginning that in early decision; I wish to test the opinion of the House. 1903 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1904

5.52 pm Hanworth, V. Maddock, B. Harries of Pentregarth, L. Mair, L. Division on Motion F3 Harris of Haringey, L. Malloch-Brown, L. Harris of Richmond, B. Mar, C. Haskel, L. Marks of Henley-on-Thames, Contents 354; Not-Contents 235. Haskins, L. L. Haworth, L. Masham of Ilton, B. Motion F3 agreed. Hayman, B. Massey of Darwen, B. Hayter of Kentish Town, B. Maxton, L. Division No. 1 Healy of Primrose Hill, B. McAvoy, L. [Teller] Henig, B. McConnell of Glenscorrodale, Hennessy of Nympsfield, L. L. CONTENTS Heseltine, L. McDonagh, B. Aberdare, L. Chandos, V. Higgins, L. McIntosh of Hudnall, B. Addington, L. Chidgey, L. Hilton of Eggardon, B. McIntosh of Pickering, B. Adonis, L. Christopher, L. Hoffmann, L. McKenzie of Luton, L. Alderdice, L. Clancarty, E. Hogg, B. McNally, L. Allan of Hallam, L. Clark of Windermere, L. Hollick, L. Meacher, B. Allen of Kensington, L. Clement-Jones, L. Hollins, B. Miller of Chilthorne Domer, Alli, L. Cohen of Pimlico, B. Hope of Craighead, L. B. Altmann, B. Collins of Highbury, L. Howe of Idlicote, B. Mitchell, L. Alton of Liverpool, L. Collins of Mapesbury, L. Howells of St Davids, B. Monks, L. Anderson of Swansea, L. Colville of Culross, V. Hughes of Woodside, L. Morgan of Drefelin, B. Andrews, B. Cooper of Windrush, L. Humphreys, B. Morgan of Huyton, B. Arbuthnot of Edrom, L. Cork and Orrery, E. Hunt of Kings Heath, L. Morgan, L. Armstrong of Hill Top, B. Cormack, L. Hussain, L. Morris of Handsworth, L. Ashdown of Norton-sub- Corston, B. Hussein-Ece, B. Morris of Yardley, B. Hamdon, L. Cotter, L. Hylton, L. Murphy of Torfaen, L. Bach, L. Coussins, B. Inglewood, L. Neuberger, B. Bakewell of Hardington Crawley, B. Irvine of Lairg, L. Newby, L. Mandeville, B. Cunningham of Felling, L. Janke, B. Northbrook, L. Balfe, L. Davidson of Glen Clova, L. Janvrin, L. Northover, B. Barker, B. Davies of Oldham, L. Jay of Ewelme, L. Nye, B. Bassam of Brighton, L. Davies of Stamford, L. Jay of Paddington, B. Oakeshott of Seagrove Bay, L. Beecham, L. Deben, L. Jolly, B. O’Donnell, L. Beith, L. Dholakia, L. Jones of Cheltenham, L. O’Neill of Bengarve, B. Benjamin, B. Donaghy, B. Jones of Moulsecoomb, B. Ouseley, L. Berkeley of Knighton, L. Donoughue, L. Jones of Whitchurch, B. Paddick, L. Berkeley, L. Doocey, B. Jones, L. Palmer of Childs Hill, L. Bhatia, L. Drake, B. Judd, L. Pannick, L. Bhattacharyya, L. Drayson, L. Kennedy of Cradley, B. Parekh, L. Bichard, L. D’Souza, B. Kennedy of Southwark, L. Parminter, B. Bilimoria, L. Dubs, L. Kennedy of The Shaws, B. Patel, L. Billingham, B. Durham, Bp. Kerr of Kinlochard, L. Patten of Barnes, L. Birt, L. Dykes, L. Kidron, B. Pendry, L. Blackstone, B. Eames, L. Kingsmill, B. Pinnock, B. Blair of Boughton, L. Elder, L. Kinnock of Holyhead, B. Pitkeathley, B. Blood, B. Elystan-Morgan, L. Kinnock, L. Plant of Highfield, L. Blunkett, L. Evans of Watford, L. Kirkhope of Harrogate, L. Ponsonby of Shulbrede, L. Boateng, L. Falconer of Thoroton, L. Kirkwood of Kirkhope, L. Prashar, B. Bonham-Carter of Yarnbury, Falkland, V. Knight of Weymouth, L. Prescott, L. B. Faulkner of Worcester, L. Kramer, B. Primarolo, B. Boothroyd, B. Featherstone, B. Krebs, L. Prior of Brampton, L. Bowles of Berkhamsted, B. Filkin, L. Lane-Fox of Soho, B. Prosser, B. Bowness, L. Finlay of Llandaff, B. Layard, L. Purvis of Tweed, L. Bradley, L. Foster of Bath, L. Lea of Crondall, L. Quin, B. Bradshaw, L. Foulkes of Cumnock, L. Lee of Trafford, L. Radice, L. Bragg, L. Fox, L. Leitch, L. Ramsay of Cartvale, B. Brennan, L. Freyberg, L. Lennie, L. Randerson, B. Brinton, B. Gale, B. Levy, L. Razzall, L. Broers, L. Garden of Frognal, B. Liddell of Coatdyke, B. Rea, L. Brooke of Alverthorpe, L. German, L. Liddle, L. Rebuck, B. Brookman, L. Giddens, L. Lincoln, Bp. Rees of Ludlow, L. Brown of Cambridge, B. Glasgow, E. Lipsey, L. Reid of Cardowan, L. Browne of Ladyton, L. Goddard of Stockport, L. Lister of Burtersett, B. Rennard, L. Bruce of Bennachie, L. Goldsmith, L. Listowel, E. Richardson of Calow, B. Burnett, L. Gordon of Strathblane, L. Lisvane, L. Ricketts, L. Burt of Solihull, B. Goudie, B. Livermore, L. Roberts of Llandudno, L. Butler of Brockwell, L. Grantchester, L. Livingston of Parkhead, L. Robertson of Port Ellen, L. Butler-Sloss, B. Green of Hurstpierpoint, L. Loomba, L. Rodgers of Quarry Bank, L. Campbell of Pittenweem, L. Greengross, B. Low of Dalston, L. Rogers of Riverside, L. Campbell of Surbiton, B. Grender, B. Ludford, B. Rooker, L. Campbell-Savours, L. Grey-Thompson, B. Macdonald of River Glaven, Rosser, L. Carlile of Berriew, L. Griffiths of Burry Port, L. L. Royall of Blaisdon, B. Carter of Coles, L. Hailsham, V. MacKenzie of Culkein, L. Russell of Liverpool, L. Cashman, L. Hain, L. Maclennan of Rogart, L. Sandwich, E. Cavendish of Little Venice, B. Hamwee, B. Macpherson of Earl’s Court, Scott of Needham Market, B. Chakrabarti, B. Hannay of Chiswick, L. L. Sharkey, L. 1905 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1906

Sheehan, B. Turnberg, L. Fellowes, L. McGregor-Smith, B. Sherlock, B. Turnbull, L. Fink, L. McInnes of Kilwinning, L. Shipley, L. Turner of Ecchinswell, L. Finkelstein, L. Montrose, D. Shutt of Greetland, L. Tyler of Enfield, B. Finn, B. Morris of Bolton, B. Simon, V. Tyler, L. Flight, L. Morrow, L. Smith of Basildon, B. Uddin, B. Fookes, B. Mountevans, L. Smith of Finsbury, L. Vallance of Tummel, L. Forsyth of Drumlean, L. Moynihan, L. Smith of Newnham, B. Vaux of Harrowden, L. Framlingham, L. Naseby, L. Snape, L. Verjee, L. Fraser of Corriegarth, L. Nash, L. Soley, L. Wallace of Saltaire, L. Freud, L. Neville-Rolfe, B. Somerset, D. Wallace of Tankerness, L. Gardiner of Kimble, L. Newlove, B. Steel of Aikwood, L. Walmsley, B. Gardner of Parkes, B. Nicholson of Winterbourne, Stephen, L. Warner, L. Garel-Jones, L. B. Stern of Brentford, L. Warsi, B. Geddes, L. Noakes, B. Stern, B. Warwick of Undercliffe, B. Gilbert of Panteg, L. Norton of Louth, L. Stevenson of Balmacara, L. Watkins of Tavistock, B. Glendonbrook, L. O’Cathain, B. Stone of Blackheath, L. Watson of Invergowrie, L. Gold, L. Oppenheim-Barnes, B. Stoneham of Droxford, L. Watts, L. Goldie, B. O’Shaughnessy, L. Storey, L. Waverley, V. Goodlad, L. Owen, L. Strasburger, L. Wheatcroft, B. Goschen, V. Palmer, L. Stunell, L. Wheeler, B. Green of Deddington, L. Patten, L. Suttie, B. Whitaker, B. Greenway, L. Pearson of Rannoch, L. Taylor of Bolton, B. Whitty, L. Griffiths of Fforestfach, L. Pidding, B. Taylor of Goss Moor, L. Wigley, L. Hague of Richmond, L. Popat, L. Teverson, L. Willetts, L. Hamilton of Epsom, L. Powell of Bayswater, L. Thomas of Gresford, L. Williams of Elvel, L. Hanham, B. Price, L. Thomas of Winchester, B. Willis of Knaresborough, L. Harding of Winscombe, B. Rawlings, B. Thornhill, B. Wilson of Dinton, L. Harris of Peckham, L. Redfern, B. Thornton, B. Wilson of Tillyorn, L. Hay of Ballyore, L. Ribeiro, L. Thurso, V. Winston, L. Hayward, L. Ridley, V. Tomlinson, L. Wood of Anfield, L. Helic, B. Risby, L. Tonge, B. Woolf, L. Henley, L. Robathan, L. Tope, L. Woolmer of Leeds, L. Hill of Oareford, L. Rock, B. Touhig, L. Worcester, Bp. Hodgson of Abinger, B. Rogan, L. Triesman, L. Wrigglesworth, L. Hodgson of Astley Abbotts, Rotherwick, L. Truscott, L. Young of Hornsey, B. L. Ryder of Wensum, L. Tugendhat, L. Young of Norwood Green, L. Hogan-Howe, L. Sassoon, L. Tunnicliffe, L. [Teller] Young of Old Scone, B. Holmes of Richmond, L. Scott of Bybrook, B. Home, E. Seccombe, B. NOT CONTENTS Hooper, B. Selborne, E. Horam, L. Selkirk of Douglas, L. Agnew of Oulton, L. Chadlington, L. Howard of Lympne, L. Selsdon, L. Ahmad of Wimbledon, L. Chalker of Wallasey, B. Howard of Rising, L. Shackleton of Belgravia, B. Anelay of St Johns, B. Chisholm of Owlpen, B. Howe, E. Sheikh, L. Arran, E. Coe, L. Howell of Guildford, L. Shephard of Northwold, B. Ashton of Hyde, L. Colgrain, L. Hunt of Wirral, L. Sherbourne of Didsbury, L. Astor of Hever, L. Colwyn, L. James of Blackheath, L. Shinkwin, L. Astor, V. Cope of Berkeley, L. Jenkin of Kennington, B. Shrewsbury, E. Attlee, E. Courtown, E. [Teller] Judge, L. Slim, V. Baker of Dorking, L. Couttie, B. Kakkar, L. Smith of Hindhead, L. Bamford, L. Craig of Radley, L. Kalms, L. Spicer, L. Barker of Battle, L. Craigavon, V. Keen of Elie, L. St John of Bletso, L. Bates, L. Crathorne, L. King of Bridgwater, L. Stedman-Scott, B. Berridge, B. Cromwell, L. Kirkham, L. Sterling of Plaistow, L. Bertin, B. Cumberlege, B. Lamont of Lerwick, L. Stevens of Ludgate, L. Bew, L. Dannatt, L. Lang of Monkton, L. Stoddart of Swindon, L. Black of Brentwood, L. De Mauley, L. Lawson of Blaby, L. Stowell of Beeston, B. Blackwell, L. Deech, B. Leigh of Hurley, L. Strathclyde, L. Blencathra, L. Deighton, L. Lexden, L. Stroud, B. Bloomfield of Hinton Dixon-Smith, L. Lindsay, E. Sugg, B. Waldrist, B. Dobbs, L. Lingfield, L. Suri, L. Borwick, L. Duncan of Springbank, L. Liverpool, E. Swinfen, L. Bourne of Aberystwyth, L. Dundee, E. Lothian, M. Taylor of Holbeach, L. Brabazon of Tara, L. Dunlop, L. Lucas, L. [Teller] Brady, B. Eaton, B. Lupton, L. Tebbit, L. Bridgeman, V. Eccles of Moulton, B. Lytton, E. Thurlow, L. Brougham and Vaux, L. Eccles, V. MacGregor of Pulham Trefgarne, L. Browne of Belmont, L. Elton, L. Market, L. Trenchard, V. Browning, B. Empey, L. Mackay of Clashfern, L. Trevethin and Oaksey, L. Buscombe, B. Erroll, E. Magan of Castletown, L. Trimble, L. Byford, B. Evans of Bowes Park, B. Mallalieu, B. True, L. Caine, L. Fairfax of Cameron, L. Mancroft, L. Ullswater, V. Caithness, E. Fairhead, B. Manzoor, B. Vere of Norbiton, B. Callanan, L. Falkner of Margravine, B. Marland, L. Vinson, L. Cameron of Dillington, L. Fall, B. Marlesford, L. Wakeham, L. Carrington of Fulham, L. Farmer, L. Maude of Horsham, L. Waldegrave of North Hill, L. Cathcart, E. Faulks, L. Mawson, L. Wasserman, L. Cavendish of Furness, L. Fellowes of West Stafford, L. McColl of Dulwich, L. Wei, L. 1907 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1908

Whitby, L. Wolfson of Aspley Guise, L. It must be for the Government, not Parliament, to set Wilcox, B. Wyld, B. our goals for the negotiations on the UK’s exit from Williams of Trafford, B. Young of Cookham, L. the EU and to conduct them. Willoughby de Broke, L. Young of Graffham, L. Wolf of Dulwich, B. Younger of Leckie, V. Of course, the Government are always mindful of the fact that further legislation will have to be introduced 6.11 pm where it is needed to implement the terms of the future relationship in UK law. Any such legislation must, of course, make it through both Houses of Parliament. Motion G It is a long-established constitutional principle that Moved by Lord Callanan the Government set the direction during international That this House do not insist on its Amendment 20, negotiations, and that principle exists for good, practical to which the Commons have disagreed for their reasons. The other place recognised this when it voted Reason 20A. down the amendment in the name of the noble Lord, The Commons disagree to Lords Amendment 20 for the following Lord Monks. As the House of Commons has clearly Reason— taken this view, I hope that noble Lords will agree 20A: Because it is not consistent with the constitutional roles that we should not insist on the amendment. I beg to of Her Majesty’s Government and Parliament in relation to the move. conduct of international relations. 6.15 pm Lord Callanan: My Lords, in the other place, much was made of the constitutional and practical concerns Lord Monks (Lab): My Lords, I am disappointed that applied to the amendment in the name of the that this amendment did not gather more support in noble Viscount, Lord Hailsham, on parliamentary the other place than it did; it was rather crowded out approval of the outcome of negotiations. These concerns in the shadow of the previous amendment, on which extend also to the amendment in the name of the the vote has taken place. My co-signatories and I noble Lord, Lord Monks, on parliamentary approval wanted Parliament to give a steer to the Government of a mandate for future negotiations. on the approach to take in the talks about the future Let me begin by setting out once again that Parliament relationship between the UK and the EU. I do not has a critical role in scrutinising the Government’s accept that that is unconstitutional. The British negotiating position. It is our responsibility as a constitution evolves, changes and moves. It was not so Government to provide both Houses with ample long ago that Parliament insisted on having a say opportunities for scrutinising both the approach that when Britain went to war, which was unprecedented in we are taking to exiting the EU and any implementing our history. This initiative was therefore justifiable. legislation. And we have done so. This has included At present, the Government are flying rather blind the Secretary of State’s Oral Statements after every in the negotiations. The Cabinet is split; the White negotiating round; committee appearances; ministerial Paper has been delayed again. I understand that there and Prime Ministerial speeches; position and future is to be another brainstorming session at Chequers partnership papers—I could go on. Most recently, we soon to see whether the Cabinet can find agreement on have committed to produce a White Paper on our what that future relationship should be. Parliament proposed future relationship with the EU, which we cannot just sit in the stand and watch this fumbling go have said will be published next month. on in government, the Cabinet and the Conservative The scrutiny received during these parliamentary Party. appearances, and in the multitude of reports from the We will therefore return to these matters when the committees of this House and the other place, have White Paper is eventually published. We will hope to been of great value and done much to help inform the see what criteria the Government and others have in Government’s work so far. There has also been a wide mind to judge the final deal, whether it is a good deal, range of engagement activity by government with key a not-so-good deal or a turkey. In those circumstances, stakeholders across business, civil society and other Parliament will have to step up to the mark and interested groups. cannot just pretend that it has nothing to do with it Debates in this place and the work of the committees until the final deal’s shape emerges. of both Houses represent valuable forums and opportunities for parliamentary scrutiny, and we have Lord Callanan: I thank the noble Lord, Lord Monks, used Parliament’s input to shape our approach to the for his speech. I did not agree with the sentiments, but negotiations. While some think that Parliament should I take his point. We are fully committed to involving have a greater role in setting the terms of our negotiations, Parliament throughout the process of our negotiations this cannot be accepted for either principled or practical to leave the EU. We have given what may be an reasons. unprecedented level of parliamentary scrutinyof Ministers Practically, we simply cannot hold up the already across the Government and of the preparations and tight negotiating timetable by providing for a further negotiations on exit. However, this amendment is approval process prior to negotiations ending. On not the right way for Parliament to scrutinise the principle, as the Secretary of State said in the other negotiations. The House of Commons has taken a place, the Government cannot demonstrate the flexibility clear decision on it and I urge noble Lords therefore necessary for a successful negotiation if their hands not to insist on it. are tied midway through the process. That will do nothing but guarantee a bad deal for this country. Motion G agreed. 1909 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1910

key issues. I should also again thank UNICEF UK, Motion H the British Red Cross and others who have helped Moved by Lord Duncan of Springbank contribute to the evolution of this amendment. I must be clear at the outset that we are here discussing That this House do not insist on its Amendment 24 asylum seekers and not refugees. Throughout the process and do agree with the Commons in their Amendments the Government have been eager to ensure that the 24A and 24B in lieu and do propose Amendment 24C clause was phrased in such a way as to enable us to as an amendment to Commons Amendment 24A— deliver the intended outcome. For that reason the 24A: Page 9, line 21, at end insert the following new Clause— Government have brought forward an amendment in “Family unity for those seeking asylum or other protection in lieu of that of the noble Lord, clearly stating that it Europe will be a priority for the UK, in negotiations with the (1) A Minister of the Crown must seek to negotiate, on behalf EU, to safeguard the rights of unaccompanied asylum- of the United Kingdom, an agreement with the EU under which, seeking children. However, it is important that we are after the United Kingdom’s withdrawal from the EU, in accordance clear that the amendment today is a framework for with the agreement— those negotiations. (a) an unaccompanied child who has made an application for international protection to a member State may, if it is in the The Government have listened to concerns raised in child’s best interests, come to the United Kingdom to join a the other place. Following commitments given by my relative who is aged 18 or over and— right honourable and learned friend the Solicitor-General, (i) is a lawful resident of the United Kingdom, or the Government have tabled a further amendment (ii) has made a protection claim which has not been decided, stating that we will seek to negotiate an agreement and under which unaccompanied asylum-seeking children (b) an unaccompanied child in the United Kingdom, who has in the EU will be able to join parents, grandparents, made a protection claim, may go to a member State to join a siblings, spouses, aunts and uncles lawfully resident in relative there, in equivalent circumstances. the UK, and vice versa. Further, we will not seek to (2) For the purposes of subsection (1)(a)(i) a person is not a put an age limit on the sponsors of reunification lawful resident of the United Kingdom if the person requires under this agreement. leave to enter or remain in the United Kingdom but does not have it. This clause establishes a clear grounding for the (3) For the purposes of subsection (1)(a)(ii), a protection negotiations yet to come. I must remind your Lordships, claim is decided— however, that it will be the final agreement, and if (a) when the Secretary of State notifies the claimant of the necessary its implementing legislation, that will lay the Secretary of State’s decision on the claim, unless the claimant legal basis for unaccompanied asylum-seeking children appeals against the decision, or to be transferred here. Nothing in the Bill will confer (b) if the claimant appeals against the Secretary of State’s decision on the claim, when the appeal is disposed of. leave to enter or remain in the UK. It is the basis upon (4) In this section— which we will enter negotiations with the EU and “application for international protection” has the meaning nothing can be achieved unless and until we reach given by Article 2(h) of Directive 2011/95/EU of the European such an agreement. Parliament and of the Council on standards for the qualification Finally, I reiterate the comments made by my right of third- country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for honourable and learned friend the Solicitor-General persons eligible for subsidiary protection, and for the content of in the other place. We will approach the negotiations the protection granted; on the basis that, as is currently the requirement under “protection claim” has the same meaning as in Part 5 of the the Dublin regulation, extended family members—by Nationality, Immigration and Asylum Act 2002 (see section 82(2) which I mean grandparents, aunts and uncles—will of that Act); need to be able to demonstrate that they have adequate “relative”, in relation to an unaccompanied child, means— resources and are able to care effectively for the child (a) a spouse or civil partner of the child or any person with in order for a transfer to take place. The overriding whom the child has a durable relationship that is similar to objective must be that any transfer is in a child’s best marriage or civil partnership, or interest, and the requirement to demonstrate adequate (b) a parent, grandparent, uncle, aunt, brother or sister of the child; resource is a fundamental part of this. Similarly, where “unaccompanied child” means a person under the age of 18 the unaccompanied child is seeking to join a relative in (“the child”) who is not in the care of a person who— the UK who is also a child, there must be adequate (a) is aged 18 or over, and reception conditions in place before that transfer can (b) by law or custom of the country or territory in which the take place. We will therefore seek an agreement which child is present, has responsibility for caring for the child.” reflects that not only must a transfer be in the child’s 24B: Page 15, line 13, at end insert best interest but there must also be an identified, “( ) section (Family unity for those seeking asylum or other funded place in the care system for them in the country protection in Europe),” to which they are to be transferred. This is an important 24C: Line 8, leave out “is aged 18 or over and”. safeguard. Just as we should not bring children to the UK if they have nowhere to stay and receive care, we also must not transfer children to EU countries unless Lord Duncan of Springbank (Con): My Lords, the and until we are satisfied that their care needs will be strength of feeling on this important issue has been met there. Any agreement must reflect that. evident each time your Lordships have discussed it. It is important that I begin by paying tribute once again I hope that this House will recognise the commitment to the noble Lord, Lord Dubs, for bringing forward the Government have shown in bringing forward this important opportunity for us to speak on these further amendments to provide greater reassurance to 1911 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1912 vulnerable individuals. I therefore ask the House to across the world, others are wrestling with this challenge accept these amendments as sent to us from the other and some are not doing very well. I believe we have place. I beg to move. established the right outcome here.

Lord Dubs (Lab): My Lords, I am grateful to the Motion agreed. Minister and his colleagues for what he has said and for what the Government have done. I could not have improved on what he said. It is an important day for Motion J child refugees. We have tried to keep the campaign on Moved by Lord Duncan of Springbank behalf of unaccompanied child refugees on a cross-party basis. We saw that in this House and there are some That this House do agree with the Commons in Conservative MPs who are very supportive in the their Amendments 25A to 25E. Commons as well. Without that, we would not have Lords Amendment 25 got to where we have. I believe that there will be quite a 25: Before Clause 10, insert the following new Clause— number of child refugees in Europe who, through this “Continuation of North-South co-operation and the prevention amendment, will, I hope, be able to have a better life in of new border arrangements this country. (1) In exercising any of the powers under this Act, a Minister I have always argued that we should not take of the Crown or devolved authority must— responsibility for all child refugees, but this amendment (a) act in a way that is compatible with the terms of the deals with those who have a connection through family Northern Ireland Act 1998, and members and relatives in this country, just as there are (b) have due regard to the joint report from the negotiators of child refugees in other countries who, under the present the EU and the United Kingdom Government on progress during system, have the right to join their relatives there—for phase 1 of negotiations under Article 50 of the Treaty on European example, a Syrian boy in France could join an uncle in Union. Stockholm. This would safeguard the position as regards 11 (2) Nothing in section 7, 8, 9 or 17 of this Act authorises regulations which— that agreement when we leave the EU. I am very 12 (a) diminish any form of North-South co-operation across grateful to the Minister and to all those in all parties the full range of political, economic, security,societal and agricultural who have supported this. I believe the cause of child contexts and frameworks of co-operation, including the continued refugees is, by and large, supported by most people in 15 operation of the North-South implementation bodies, or this country—although not by everybody. I think that (b) create or facilitate border arrangements between Northern if one puts it to people in this country they will say Ireland that, in terms of our humanitarian traditions, it is 17 and the Republic of Ireland after exit day which feature— right that we should give support to child refugees. (i) physical infrastructure, including border posts, Public opinion is on our side and I am grateful that the (ii) a requirement for customs or regulatory compliance checks, Government have been so helpful in what they have (iii) a requirement for security checks, done today. (iv) random checks on goods vehicles, or 22 (v) any other checks and controls, Baroness Altmann (Con): My Lords, I too congratulate 23 that did not exist before exit day and are not subject to an my noble friend for what I think is absolutely the right agreement between Her Majesty’s Government and the Government decision. I am really pleased to welcome the Government’s of changes and of course I congratulate the noble Lord, 25 Ireland.” Lord Dubs, on his persistence on this issue of child Commons Amendments to Lords Amendment 25 refugees, an issue for which I think there is much 25A: Line 11, leave out “8,”. support across the House. I thank my noble friend. 25B: Line 11, leave out “17” and insert “17(1) or (5)”. 25C: Line 12, leave out from “co-operation” to “, or” in line 15 Lord Berkeley of Knighton (CB): My Lords, I think and insert “provided for by the Belfast Agreement (as defined by the humanitarian aspect of Brexit, especially in so far section 98 of the Northern Ireland Act 1998)”. as it affects children, is something, as the noble Lord, 25D: Line 17, leave out from “feature” to end of line 22 and Lord Dubs, mentioned, that the general public feel insert “physical infrastructure, including border posts, or checks very strongly about. I am delighted to be able to and controls”. congratulate the Government and the noble Lord, 25E: Line 23, leave out from second “not” to end of line 25 Lord Dubs, on reflecting that very important view. and insert “in accordance with an agreement between the United Kingdom and the EU”. Lord Goldsmith: My Lords, I add our thanks to the Lord Duncan of Springbank: My Lords, I hope I Minister for the tribute that he paid to my noble friend can be brief, as befits the hour. I thank again my noble Lord Dubs. We entirely endorse that. friend Lord Patten for his amendment and all the work he has undertaken since it has been lodged. Lord Duncan of Springbank: My Lords, I think we Indeed, I thank all noble Lords who spoke on Report. are in full agreement in paying tribute not only to the When we first addressed this amendment, we made noble Lord, Lord Dubs, for his diligence, his commitment clear that, while we agreed with the spirit and intent of and his compassion, but to all those across all parties the amendment, its language was potentially too loose who have recognised that, irrespective of Brexit, we and perhaps the Bill was not the most appropriate must recognise our obligations and duties across Europe home for such an amendment. Since then, we have to the reunification of asylum-seeking children. It is reflected further. Ultimately, we acknowledge that it is also important to stress that across Europe, and indeed difficult to justify opposing something with which we 1913 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1914

[LORD DUNCAN OF SPRINGBANK] and what will be remembered is that your Lordships’ almost entirely agree. On that basis, as the Government House devoted many hours of painstaking scrutiny to stated in the other place on Tuesday, we are happy to a Bill that we all recognised had to go on the statute accept the thrust of the amendment. The only reason book, and we improved it significantly. I am quietly we return it to your Lordships’ House is to ensure that proud of what we have done in this House. I hope all the amendment we accept in principle is fit for the your Lordships will be. I hope that those outside who statute book. comment on these affairs will recognise the constructive To achieve that aim, the other place has agreed role of this House of Parliament. amendments in lieu of those tabled by my noble friend Lord Patten. These amendments do three things. First, 6.30 pm they ensure that the amendment reflects the reality that the withdrawal agreement will be concluded between Lord Hain (Lab): My Lords, the profound uncertainty the UK and the EU, not the UK and Ireland. It is about the UK’s future relationship with the EU is the important to reflect this reality, because otherwise the very reason why, last December in their joint report, amendment risks contravening the principle of consent the UK and EU agreed that the Good Friday/Belfast in the Belfast agreement, an issue raised when we agreement, debated this matter by the noble Lord, Lord Empey, “must be protected in all its parts”, and my noble friends Lord Trimble and Lord King of throughout the Brexit process. It is also why, in that Bridgwater. The Belfast agreement does not provide report, Britain affirmed its commitment to, for joint authority over Northern Ireland between the “the avoidance of a hard border,including any physical infrastructure UK Government and the Irish Government. That is or related checks and controls”. why the Government replaced the reference to the I therefore welcome the Government’s concession and Government of Ireland with a reference to the EU. I would like to think that the Minister, who is held in Secondly, the changes tabled in the other place high regard in this House, was instrumental in that ensure that we refer back to the Northern Ireland Act change. when we talk about north-south co-operation, rather However, I am sorry to say that the Government’s than creating a new definition. Thirdly, the changes failure to accept a key part of the Lords amendment tabled in the other place tighten the amendment. The and instead substitute a minimalist subsection makes wording in the original amendment was not legally me suspicious,because it focuses on physical infrastructure watertight, so the Government’sreductions are important as the only problem. But this infrastructure and the in ensuring that this amendment sits appropriately on associated checks and controls are the symptom, not the statute book. Ultimately, this amendment in lieu the cause, of a hard border. Regulatory arrangements, still refers to “checks and controls”, so covers the common standards and compatible rules of origin are different types of checks and controls listed in my all absolutely essential to ensure a frictionless border. noble friend’s original amendment. I stress that this This was recognised in the original Lords amendment, amendment is only about the powers in the Bill, and which I stress did not specify UK membership of the applies only in relation to the agreement we reach European Union customs union and single market but between the UK and the EU. Its effect does not stray stated clearly that there must be no regulations which, more widely. As we have said before, the Northern Ireland border will be dealt with in the withdrawal “create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature … agreement, which will be implemented in domestic law physical infrastructure, including border posts … a requirement by the withdrawal agreement and implementation Bill. for customs or regulatory compliance checks … a requirement for In conclusion, I hope I have the support of your security checks … random checks on goods vehicles, or … any Lordships in backing the amendment in lieu from the other checks and controls … that did not exist before exit day”. other place to ensure that this otherwise sensible For what reason have these clear and specific details amendment can complete its journey to the statute now been excluded? Perhaps the Minister can explain book. to the House. Indeed, the wording of the Commons amendment Lord Cormack: My Lords, I think this is a very fine is characterised by some ambiguity, even as it is more illustration of what this House has been able to do to restrictive in its scope. As we know, there is already the Bill. Of course, tomorrow all the focus, all the some limited infrastructure at the border, such as razzmatazz, will be concentrated on the vote that took automatic number plate recognition cameras. Are these place less than half an hour ago, but there has been amendments sufficient to protect against the expansion real progress and a real meeting of minds. Clearly, we and reappropriation of this infrastructure for much are very much in debt to my noble friend Lord Patten more intrusive and ambitious use—for example, enforcing for his initiative, but the Government have responded a hard customs or regulatory border? If this were to be in kind and that is something for which we are all the case, not only would it be an incitement to civil grateful. It also underlines the fact that this House was disobedience or worse, it would constitute a gross able to give critical scrutiny to the Bill and the Government betrayal of the trust of the Irish Government and, were able to recognise, on many occasions, that points most importantly, the people of Northern Ireland. of real substance had been made and real advance had Such trust has been hard won and carefully fostered. It been achieved. is vital to the long-term stability of the peace process. I hope that when people look back on this, all the Twenty years on from the agreement, the success of ridiculous accusations of betrayal and treachery and the peace process is evident in the fact that co-operation enemies of the people—all that rubbish—will be forgotten across the Irish border is multi-layered, complex and 1915 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1916 embedded in daily life on both sides. We know from Ireland, north or south, is asking for a hard border or the mapping exercise conducted by the EU with the to in any way obstruct the free movement of people, British and Irish Governments that there are a reported goods and services. That is a tremendous achievement 142 areas of north/south co-operation, ranging from and we must build on it. services providing specialist autism and cancer care to The Commons amendments that have come back those dealing with waste management and environmental to us represent an increased nuance, yet one that is protection. Are these amendments sufficient to protect legally tight and does not obstruct us in appropriate all such areas? No, I fear they are not. They are rather checks and balances. I am happy to support them in grudging and minimalist, purporting to avoid a hard that light. No doubt there will be other issues in future border but not actually guaranteeing that, and therefore and we will come back to them. But I pay tribute to the Government are in real danger of abandoning the the Minister. He has taken things forward from the very spirit of the Belfast agreement that they profess amendment that went from this House and I appreciate to protect—and, indeed, is contained in the Lords that. I support the Commons amendments. amendment. Therefore, I say very seriously that there is nothing— nothing—more important in all the Government’s Lord Empey (UUP): My Lords, I was not keen on many duties and responsibilities, not least for the the amendment originally proposed by the noble Lord, Brexit process, than maintaining peace and continued Lord Patten of Barnes, and I still think there are issues progress on the island of Ireland. Regretfully, I do not with the proposal before us. believe that the Commons amendments meet that Reference has been made to the joint report issued task. Indeed, I fear they fall well short of that. Although in December last year. The problem is that that was I support what is before us this evening, I regret that completely contradictory. It contained almost mutually the original subsection was not included, because that exclusive objectives. I feel that putting that into the would have removed all the doubts that I otherwise Bill has its problems. The truth of the matter is that have. the border as we refer to it on the land is only part of the border. The rest of the border is in the sea. Of Lord Alderdice (LD): My Lords, in Committee I course, the vast majority of trade goes across the sea added my name to an amendment with the noble from Irish ports to Welsh ports. That is where the bulk Lord, Lord Patten, and the noble Baronesses, Lady of trade takes place. One statement is that we have O’Neill and Lady Smith, and was strongly supportive regulatory alignment, and the other is that that will of an amendment that entrenched in the Bill the Good not obstruct access to the UK-wide market. That can Friday agreement and the north/south co-operation happen in only two circumstances: either we all remain that emanated from it. I did not feel able to give the in “a” or “the” customs union, or Northern Ireland same support to the amendment which came on Report. businesses have to have two entirely separate regulatory I pointed out at that time that there was a border but it environments in which to function—one for the UK-wide was important that it was not obtrusive. However, market and another for the EU-wide market. Anybody there were circumstances that were easily foreseen in who thinks that will be progress is wrong. which, for example, some degree of security infrastructure With regard to the difference between hard and was necessary, but only in the event that there was a soft, the terms are unfortunate. The only conceivable real security requirement for it. My concern was that way any hard border could arise is if the European the wording of the amendment that was passed on Union were to try to force the Irish Government, if Report was too loose and did not address those kinds disagreement were arrived at, to put in a border to of problems. protect the single market. There are no circumstances I pay tribute to the Minister and his colleagues. I in which any UK Government will put up infrastructure. agree with the noble Lord, Lord Cormack, that the I cannot see any circumstances in which an Irish intervention of the House of Lords has been very Government could put any physical infrastructure. It helpful. It is also the case that the co-operation between is almost totally inconceivable. Unless Mr Barnier is the House of Lords and the House of Commons was going to bring his breezeblocks and cement with him to try to ensure that what came back to us improved and build it himself, I do not know who will do it, on our improvement, and I think that that is the case. because we will not and I do not think our colleagues Sometimes one can have the impression that those in Dublin will. The noble Lord, Lord Alderdice, may who support the Belfast agreement think that there is hold their coats, but politically and emotionally it is an now no border in Ireland. This is not the case. The impossibility. What we should be doing—perhaps the Good Friday agreement is absolutely clear. We have Minister can update us on where we are with this—is addressed the relationships within Northern Ireland, sitting down with our Irish colleagues and Mr Barnier between north and south, and between Britain and and working out the detail. Only we who live in Ireland. But the border is still there and anybody who Ireland can erect it and only we have to live with it, so lives close to it knows exactly where the border is and we have a vested interest. which Government they pay—or in some cases do not It is such a shame—I have had this conversation pay—their taxes to. Police and others know exactly with the noble Lord, Lord Cormack—that Stormont where the border is because there is no right of hot is not functioning because that would open up so pursuit. It is important that the border is not obtrusive many more opportunities for us. We could devolve and obstructive to the free movement of people. The some issues to Stormont and, with the north-south tremendous achievement of the Good Friday agreement bodies and the regulatory arrangements we agreed and the Irish peace process is that no political party in there, there could be a flexible approach that would 1917 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1918

[LORD EMPEY] Trade Bill that will come before us—it is a hugely avoid so many of the difficulties that the Government important issue—but I very much take the point made are now facing. I have to say to the Minister that we by the noble Lord, Lord Empey.He, the noble Viscount, have arrived at a position of paralysis and stasis where Lord Bridgeman, the noble Lord, Lord Bew, and I nothing is happening politically, and that is a mistake. were at the British-Irish Parliamentary Assembly in History tells us, and colleagues who have experience of County Sligo last week meeting Members of Parliament Northern Ireland know, that vacuums get filled with not just from Ireland and the United Kingdom but all the wrong people. We are allowing this vacuum to from the devolved institutions, and there was unanimous develop and take root, and the longer we leave it the agreement that Brexit is dominating British-Irish relations. harder it will be to get people around the table to get No other country in the European Union will be this fixed. Weare moving into local government elections affected like Ireland, and it is very important that we next year. We do not even know where we are in this acknowledge that in Parliament as well as in government. place with regard to what might happen. It is not the The other point made by the noble Lord, Lord Minister’s responsibility to answer today on this, but Empey, is also vital. The Government must concentrate if Stormont was working, we could do so much more their efforts on restoring the institutions in Belfast. on these issues to get a resolution that would be Only this week, the Government announced extra satisfactory to the British Government, ourselves and money for the National Health Service. The Barnett our Irish colleagues. consequentials of that for Wales and Scotland will be I attended the British-Irish Parliamentary Assembly decided by Ministers and Parliaments. Who will decide the week before last. The noble Lord, Lord Murphy, where that extra money—hundreds of millions of was there. We talk regularly to colleagues there. There pounds—will go in Northern Ireland when there is no is huge anxiety. We understand that, and why there is Executive? More significantly in the context of this anxiety. People have to understand the emotion behind debate, there is no political voice from Northern Ireland this. This is often misunderstood. I have brought it to in the negotiations dealing with these important issues. the attention of this House that relatively modest I am sure the Minister will have this uppermost in his amounts of trade go between Northern Ireland and mind in the weeks ahead. In the meantime, we accept the Republic. It is only about 1.6% of Irish exports that this amendment is not everything we wanted, but and 1.6% of Irish imports, but there is the emotion it is a lot of it, and I hope that the Commons will that goes with that. The main trade goes from Dublin accept it when it goes back to them. There is absolute to Holyhead, or from Rosslare to Fishguard and so recognition that, 20 years after the signing of the on. However, that is not the issue for a lot of people. Good Friday agreement, we must not allow Brexit to The issue for a lot of people is what that represents. As interfere with all the good work that has resulted from the noble Lord, Lord Alderdice, rightly points out, it that agreement in 1998. is not that there is no border. Of course there is a border; we are two jurisdictions. We have eliminated the physical manifestation of division, if I may put it Lord Duncan of Springbank: My Lords, as ever on that way, and these emotional things are what is driving this issue, we have brought forward some of the key a lot of our Irish colleagues. It is not always pounds, aspects that are important to our relations in Northern shillings and pence. There is an emotional issue which Ireland. I shall touch briefly on some of the points we have to take into account. raised. A number of noble Lords stressed that there is a border between Ireland and Northern Ireland. There My only anxiety about where we are with this is the are different jurisdictions for taxation and various December statement, which I believe has fundamental other aspects, but we have to recognise that we have contradictions that we have not solved. If the Minister, made great progress in how that border is viewed and his colleagues and his right honourable friend in the must recognise it going forward. We cannot create other place could put more pith into their attempts to further infrastructure on that border. get Stormont going again, that would add enormous flexibility to what we could achieve in the next few months. I bring my points directly to those raised by the noble Lord, Lord Hain, who was disappointed that there was not enough of the specificity and designation 6.45 pm that he felt needed to be there. In truth, when we talk Lord Murphy of Torfaen (Lab): You can please about checks and controls we are not trying to be some of the people some of the time, but never all of ambiguous; we are trying to capture all those aspects. the people all of the time. Like my noble friend Lord When I spoke in one of the previous debates in your Hain, I should like to have seen more reference in the Lordships’ House, I addressed issues raised by the amendment to the customs union that has to be in noble Baroness, Lady Kennedy of The Shaws, about some way adopted to ensure that there is no very hard the checks that will not happen on that border. There border. I also agree, however, with the noble Lord, will be no profile and no quixotic behaviour. We need Lord Cormack: the fact that this amendment is before to recognise that the border as is must remain as is. We us at all is an indicator of the work of the Government, shall not impose on the border, through either the Minister and his ministerial colleagues, including infrastructure or unintentional non-tariff barriers, any the Member for Worcester, who has been dealing with restriction that impedes the movement of people or this. The Bill now refers to the Good Friday agreement, indeed, we hope, of trade and goods. That will of north-south ministerial bodies and the need to avoid a course be developed and resolved in the Bills that physical border with all its trappings. I am sure that in come after; there will be opportunities in both the the months ahead the Minister will be able to find Trade Bill and the withdrawal implementation Bill to some answer to my noble friend Lord Hain in the address these matters still further. 1919 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1920

It is important to reflect on the points raised by my the Order Paper, but I hope that having framed it in noble friend Lord Cormack at the beginning. This may this way it is clear why I am asking the House not to not be where the razzmatazz of the afternoon is but insist on its amendments today. I hope the House is what we have done here is bring together all sides of content that it has played its revising role on this point the House, I hope, in putting into the Bill that which by asking the other place to think again but, having was not there before: recognition of the vital importance done so, will now let the matter rest. I beg to move. of the Belfast agreement and recognition of north/south co-operation are now in the Bill because of the activities Lord Hannay of Chiswick: My Lords, I was one of of this House and the other place. There will of course those who proposed the amendment that has not found be opportunities to develop those aspects. pleasure in the other place. I recognise that, as the There will be challenges, I do not doubt, and it is Minister has said, the date of our departure from the right to reflect that the absence of an Executive in EU will actually be determined not by what we put Northern Ireland is a detriment to the people of into the Bill but by international law—namely,Article 50. Northern Ireland at this critical moment. There are If under Article 50 it is decided that a longer period not only the Barnett consequentials on health but than the two years is needed, no doubt that will be many other examples where, too often, we are calling agreed by common accord with Brussels,and the Minister on civil servants to do the job of Ministers. That will be standing at the Dispatch Box telling us that cannot go on. Equally, there are times right now when after all 29 March is not set in stone. At that moment, I the voices of the communities in Northern Ireland will try not to remind him of the various times at would be an asset to our engagement on the wider earlier stages of the Bill when he said it was set in stone. Brexit question but they are missing. My own view was that the date has no place in the The noble Lord, Lord Empey, said we should have Bill, and that was actually the view of the Government more pith. Well, I am not going to take the pith any at the outset. However, they changed their minds as longer. I am going to conclude my remarks and say: part of a political manoeuvre. As the Minister has I beg to move. said, there is some flexibility built into what is known as the Letwin formula, which is the one that the House Motion J agreed. of Commons has reverted to, and I do not think we should trouble the scorers any more on this matter. Motion K Lord Callanan: I thank the noble Lord, Lord Kerr, Moved by Lord Callanan for his remarks. That this House do not insist on its Amendments 37, 39 and 125, to which the Commons have disagreed Noble Lords: Hannay! for their Reason 37A. 37A: Because it is better for a default “exit day” to be specified Lord Callanan: I do apologise; the time is getting in the Bill rather than appointed by regulations made under the late. It is right that this be laid down with clarity and Bill. certainty for the public. It is strange that I get Hannay and Kerr, confused, isn’t it? It is also right that our law Lord Callanan: My Lords, we come again to the be aligned with the international law that has determined issue of exit day. Both Houses have debated this issue this date. The Bill reflects both the date on which we extensively during the Bill’s passage. There is therefore and the EU are committed to the UK exiting the EU. I little new to say about how exit day operates in the am therefore glad that noble Lords are not insisting on Bill. It is an appointed day on which a significant these amendments. number of the key provisions of the Bill have their material effect. As that provision entered this place, it Motion K agreed. followed international law clearly and precisely. It was in line with the precise date and time at which we Motion L would leave the EU; it was not a date that the Government Moved by Baroness Goldie: picked arbitrarily. There was also a mechanism to change the date in the Bill if that were so agreed, with That this House do not insist on its Amendment 43, specific reference to the circumstances in which that to which the Commons have disagreed for their international law mechanism would be activated. Reason 43A. This House chose to send for reconsideration by 43A: Because it inappropriately restricts the power in Clause 17(1). the House of Commons amendments that undid the careful consideration and multiple amendments that Motion L agreed. its Members had provided. I understand that many here wanted to ensure that there was as much flexibility Motion M as possible in the Bill but I repeat that it is international Moved by Baroness Goldie: law, not domestic law, that determines when we leave the EU. I am afraid that I am not surprised that the That this House do not insist on its Amendment 45, other place has rejected our amendments. I hope noble to which the Commons have disagreed for their Lords accept that the Commons has had the chance to Reason 45A. think again, and has come to the same conclusion that 45A: Because it inappropriately restricts the power in Clause 17(5). it did previously. I suspect that many knew what the Government’s position would be before they saw it on Motion M agreed. 1921 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1922

53A: Page 64, line 15, leave out “3 months” and insert “three Motion N years” Moved by Lord Callanan Motion Q agreed. That this House do not insist on its Amendment 51, to which the Commons have disagreed for their 7 pm Reason 51A. 51A: Because it is not the policy of the government for the United Kingdom to continue to participate in the EEA as part of Motion R its future relationship with the EEA States. Moved by Baroness Evans of Bowes Park That this House do not insist on its Lord Callanan: My Lords, the Commons voted by Amendments 110 and 128, to which the Commons an overwhelming majority of 201 to reject the amendment have disagreed for their Reason 110A, and do propose tabled by the noble Lord, Lord Alli, which requires Amendments 110B to 110J in lieu— continued participation in the European Economic 110A: Because the Commons prefer their proposed arrangements Area to be a negotiating objective for the Government. for sifting. As set out by the Solicitor-General in the other place, 110B: Page 45, line 4, leave out “the House of Commons” and seeking to participate in the EEA agreement beyond insert “each House of Parliament” the implementation period would not pass the Prime 110C: Page 45, line 9, leave out from “so” to end of line 16 and Minister’s test that our future partnership with the EU insert “and a committee of the House of Lords charged with must respect the referendum result. It would not deliver doing so have, within the relevant period, each made a control of our borders or our laws. recommendation as to the appropriate procedure for the instrument. The other place also voted by a majority of 82 to (4A) Condition 3 is that the relevant period has ended without reject the alternative amendment tabled by the Opposition condition 2 being met. Front Bench replacing the requirement to remain in (4B) Sub-paragraph (4C) applies if— the EEA with a requirement to make it a negotiating (a) a committee makes a recommendation as mentioned in sub- paragraph (4) within the relevant period, objective for the UK to maintain full access to the (b) the recommendation is that the appropriate procedure for internal market. The Commons objected to that the instrument is for a draft of it to be laid before, and approved amendment for a range of reasons. It did not respect by a resolution of, each House of Parliament before it is made, the indivisibility of the four freedoms, it did not and deliver control of our laws and it did not respect the (c) the Minister who is to make the instrument is nevertheless referendum result. That is why the Commons, and of the opinion that the appropriate procedure for the instrument indeed several members of the Labour Party, chose to is for it to be subject to annulment in pursuance of a resolution of vote against it. Instead, the elected House opted for either House of Parliament. the certainty put forward in the Government’s position, (4C) Before the instrument is made, the Minister must make a statement explaining why the Minister does not agree with the which is not to seek membership of the single market recommendation of the committee. after we leave the EU but instead to seek the broadest (4D) If the Minister fails to make a statement required by and deepest possible partnership, covering more sectors sub-paragraph (4C) before the instrument is made, a Minister of and co-operating more fully than any free trade agreement the Crown must make a statement explaining why the Minister anywhere in the world today. has failed to do so. The view of the other place is clear and I hope (4E) A statement under sub-paragraph (4C) or (4D) must be noble Lords will be able to respect it. I beg to move. made in writing and be published in such manner as the Minister making it considers appropriate. (4F) In this paragraph “the relevant period”means the period— Motion N agreed. (a) beginning with the first day on which both Houses of Parliament are sitting after the day on which the draft instrument was laid before each House as mentioned in sub-paragraph Motion P (3)(b)(i), and Moved by Baroness Goldie: (b) ending with whichever of the following is the later— (i) the end of the period of 10 Commons sitting days beginning That this House do not insist on its Amendment 52, with that first day, and to which the Commons have disagreed for their (ii) the end of the period of 10 Lords sitting days beginning Reason 52A. with that first day. 52A: Because it is important to retain a power to allow for (4G) For the purposes of sub-paragraph (4F)— certain challenges to be brought in domestic law where they (a) where a draft of an instrument is laid before each House of would otherwise be excluded by paragraph 1(1) of Schedule 1. Parliament on different days, the later day is to be taken as the day on which it is laid before both Houses, Motion P1 (as an amendment to Motion P) not moved. (b) “Commons sitting day” means a day on which the House of Motion P agreed. Commons is sitting, and (c) “Lords sitting day” means a day on which the House of Lords is sitting, Motion Q and, for the purposes of sub-paragraph (4F) and this sub- paragraph, a day is only a day on which the House of Commons Moved by Baroness Goldie: or the House of Lords is sitting if the House concerned begins to That this House do not insist on its Amendment 53 sit on that day.” and do agree with the Commons in their 110D: Page 49, line 5, leave out “6(3) or” Amendment 53A in lieu. 110E: Page 49, line 5, after “7(3)” insert “or 11” 1923 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1924

110F: Page 49, line 16, leave out “the House of Commons” to rectify this or we will have no provision in the Bill and insert “each House of Parliament” allowing for a sifting process in this House whatever. I 110G: Page 49, line 21, leave out from “so” to end of line 28 am pleased that when rejecting our amendments, the and insert “and a committee of the House of Lords charged with other place, quite rightly, left it up to us to decide doing so have, within the relevant period, each made a whether or not to emulate its own sifting mechanism. recommendation as to the appropriate procedure for the instrument. The Government have always believed that this (4A) Condition 3 is that the relevant period has ended without condition 2 being met. House should have an analogous mechanism to that in the other place, which is why I worked with the Procedure (4B) Sub-paragraph (4C) applies if— Committee to agree the mechanism by which the (a) a committee makes a recommendation as mentioned in Secondary Legislation ScrutinyCommittee would conduct sub- paragraph (4) within the relevant period, the functions which, in the other place, will be conducted (b) the recommendation is that the appropriate procedure for by a new sifting committee. the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made, Unfortunately, the Government’s amendments and providing for that were pre-empted on Report by the (c) the Minister who is to make the instrument is nevertheless amendments in the name of the noble Lord, Lord of the opinion that the appropriate procedure for the instrument Lisvane. As the Commons has now made its view clear is for it to be subject to annulment in pursuance of a resolution of once more, the Government are returning to the proposals either House of Parliament. which this House did not have the opportunity to (4C) Before the instrument is made, the Minister must make a decide on, as amendments in lieu. Without their being statement explaining why the Minister does not agree with the accepted today, the sifting process would be deprived recommendation of the committee. of the weight of expertise in this House on questions (4D) If the Minister fails to make a statement required by of secondary legislation and procedure. sub-paragraph (4C) before the instrument is made, a Minister of the Crown must make a statement explaining why the Minister I believe that our amendment strikes the right balance. has failed to do so. It will ensure that there is sufficient time for the (4E) A statement under sub-paragraph (4C) or (4D) must be legislative challenge ahead: a challenge for which we made in writing and be published in such manner as the Minister all share responsibility. Although that means that the making it considers appropriate. committees will have to react at pace, we are confident (4F) In this paragraph “the relevant period”means the period— that they are well equipped to do so. (a) beginning with the first day on which both Houses of Most importantly, our amendment will put this Parliament are sitting after the day on which the draft instrument House on an equal footing with the Commons and was laid before each House of Parliament as mentioned in ensure that there is every opportunity to make sub-paragraph (3)(b)(i), and recommendations which the Government are committed (b) ending with whichever of the following is the later— to respecting. (i) the end of the period of 10 Commons sitting days beginning I know that there has been concern that Ministers with that first day, and may ignore the committees. I echo the sentiment of (ii) the end of the period of 10 Lords sitting days beginning my right honourable friend the Secretary of State for with that first day. Exiting the European Union when he said that there is (4G) For the purposes of sub-paragraph (4F)— likely to be a “political cost which will be significant” (a) where a draft of an instrument is laid before each House of to going against a sifting committee recommendation. Parliament on different days, the later day is to be taken as the day on which it is laid before both Houses, As I made clear in our previous debates on this (b) “Commons sitting day” means a day on which the House issue, the Government have always expected to have to of Commons is sitting, and justify themselves to the sifting committees where they (c) “Lords sitting day” means a day on which the House of agree, with Ministers either being called in person Lords is sitting, before the committee or writing to explain their views. and, for the purposes of sub-paragraph (4F) and this sub- I hope the House does not think that this is a commitment paragraph, a day is only a day on which the House of Commons which Ministers would shirk or seek to shy away from. or the House of Lords is sitting if the House concerned begins to However, in order to put this beyond doubt, the sit on that day.” Government are happy to put their commitment into 110H: Page 49, line 30, leave out “6(3) or” statute, and this is reflected in the amendments before 110J: Page 49, line 30, after “7(3)” insert “or 11” us tonight. Ministers will be required to make and provide to Parliament a Written Statement explaining Baroness Evans of Bowes Park: My Lords, appropriate themselves if they disagree with a recommendation scrutiny of delegated powers is crucial to ensuring that from one or both of the sifting committees. Your the Government are properly held to account by Lordships can be assured that there will be no hiding Parliament, and we accept that this is particularly place from the light of your scrutiny. I beg to move. important in relation to those granted under this Bill. Last week the other place debated and rejected Lord Lisvane: My Lords, it would be extremely Amendments 110 and 128. Whatever some noble Lords churlish of me not to acknowledge the movement might feel about the sifting mechanism proposed, it is which the Government have undertaken on these issues, what the other place favours and it has now demonstrated particularly including your Lordships’ House in the that across multiple Divisions. sifting process. During Commons consideration of As it stands, the Bill does not provide a statutory the amendments, the Secretary of State for Exiting the basis for a sifting mechanism in this House. I hope European Union, deployed a rather familiar set of that noble Lords will agree that we must do something arguments, if I may put it in that way. Quoting the 1925 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1926

[LORD LISVANE] Baroness Goldie (Con): The noble Lord’s eloquence chair of the House of Commons Procedure Committee, is very diverting, but will he please speak to the he insisted that the Government proposals, under Motion under consideration? which Ministers will, despite the statements and other provisions, have the final word on whether the substantial Lord Wallace of Saltaire: I started by welcoming amount of secondary legislation which may be brought what the Leader of the House said about the sifting forward under the Bill, should be subject to the affirmative committee and defending the role of this House and or negative procedure. He insisted that that procedure ensuring that this House plays its role. That is welcome had teeth. If it is really to have teeth, some significant language. We have not heard enough of it from the dental work is still required. But these exchanges are Government. We should all be worried about the not the place to consider matters of that sort. The potential deterioration of this debate. I wish merely to point has been made and although, in an ideal world, underline that the debate has got nasty on both sides. it has not been completely adequately answered, I One MP was killed two years ago. Let us recognise think we should leave the matter there. The test will be, that the current violent language may take us that far. of course, the first occasion on which the committee’s In the way in which we approach our task over the view differs from that of the Government. next six months, we will do our bit on the detail. I very much hope that the Leader will assure us that the Lord Wallace of Saltaire: I thank the Leader of the Government will, all the way through, respect the House for the generous remarks she made about the appropriate constitutional role of this and the other role of this House. It is particularly important that House in dealing with a matter which is not simply she sees it as an important part of her role to defend decided by the referendum, because there is so much the role of this House and of Parliament as a whole. detail in it, and the detail always matters. We have noticed in recent months, and even more in recent weeks, some pretty anti-parliamentary language Lord Cormack: My Lords, the noble Lord was in the press. I note that at the end of Quentin Letts’s entirely right to touch on some of those things. I am one and a half page rubbishing of Dominic Grieve, he very grateful to the Leader of the House for the said: manner in which she introduced the amendment. We “The sight of the elite grabbing power from the Queen’s have listened to the other place, which it is our duty to government will rupture trust in the ballot box and could imperil centuries of British support for parliamentary democracy”. do. I am one of those who, although I share some of the misgivings of the noble Lord, Lisvane, like him, I Lord Hamilton of Epsom (Con): I am very interested do not believe that we should push this one any in the noble Lord’s remarks. Were they not his remarks further tonight. rubbishing the Foreign Secretary when he was standing We have had a good day’s debate, but it is important at the Bar? that we try to lower the temperature a bit on both sides of the argument. It has got a little unpleasant from Lord Wallace of Saltaire: I am not sure that these time to time, even in your Lordships’ House. We need are in any sense the same. I was merely criticising the to respect each other’s integrity and sincerity. There is Foreign Secretary for not being Foreign Secretary. He no one in your Lordships’ House whose patriotism does a lot of other things, but certainly does not fulfil should be impugned as it was this afternoon. We need the role of Foreign Secretary. to work closely together. We are going to leave the I am now talking about some fundamental European Union. Those of us who are unhappy about constitutional issues, which are the relationship between that have to recognise it but, equally, those who take Parliament and Executive Government. They are at a different line have to recognise that a minority of stake in this and very much matter when it comes to the whole electorate voted to leave and that, of those how much of a role we play in looking at the detail. who voted, 48% voted the other way. We have seen some rather violent language in the We are leaving, and this Bill is part of that process. media in the past few weeks. I spoke to a Cross-Bench However, in accepting what my noble friend the Leader Peer this morning who said, “It is intimidating and, of the House has said, and endorsing what the noble frankly, I feel intimidated”. I know that many MPs, Lord, Lord Lisvane, has said, I urge everyone, present particularly women MPs, feel actively intimidated by and absent, to try to ensure that future debates are the violence which they get on social media. I think conducted in slightly more of an atmosphere of mutual the Government ought now to be saying to the right-wing respect. This House has an honoured and honourable media that violent language encourages violence. We role to play. I believe that it has done its duty extremely are in a dangerous situation in which parliamentary effectively over the past few months. I hope that we democracy—that is to say, reasoned debate within a shall continue to do that and that in doing it we shall clear structure of rules—is something which we have not be sniped at by those whose sniping reveals only to defend. their own contempt for the parliamentary process. I note that the Sun on Sunday editorial accused MPs of having contempt for democracy and said: Lord Newby: My Lords, I am sorry that the “Such is the contempt these MPs have for democracy when it Government did not feel able to accept the amendment delivers a vote they don’t like … they seem neither to know or to that your Lordships’ House passed on this issue, but at care what they will unleash”. least we now have a workable amendment. I am worried about what the current atmosphere I have just one question for the Leader. She said might unleash. It therefore seems to me that the way in that she was confident that the committees would be which both sides conduct this debate is very important. able to respond “at pace” to the flow of statutory 1927 European Union (Withdrawal) Bill[18 JUNE 2018] European Union (Withdrawal) Bill 1928 instruments coming before them. I am absolutely confident concentrated here will be properly available to provide that they can respond at pace, but can the Government proper scrutiny of the SIs that come under this Bill. produce the statutory instruments at pace? Furthermore, The noble Baroness asked about timing. Once this Bill if 1,000 statutory instruments will be required to receives Royal Assent, SIs can obviously start to be implement this Bill when enacted, and given the probability tabled. Therefore, we are not quite there yet, but like of a transition phase, how many of those 1,000 statutory her I hope that we will be very soon. instruments have to be enacted before 29 March 2019? These amendments will also ensure that any Minister who disagrees—and I may have misspoken in my Baroness Hayter of Kentish Town: My Lords, I can opening speech by saying “agree” when I meant to say be very brief, because the noble Lord, Lord Newby, “disagree”; I put that on the record for clarity—with has noted exactly the same words as I have—“at the recommendations of one or both of the sitting pace”. These words alarmed me, because although committees has to explain themselves. some of us feel that we worked very hard on this Bill, I can certainly assure the noble Lord, Lord Newby, it is as nothing to what the people on those committees that the Government will play their part in ensuring will be doing. I wish them luck. that we have a functioning statute book, and indeed My question is related to that: when are we expecting the proposal that has come forward under this the first of these SIs? Now that we have this, we need amendment—to have two committees in order to to move fairly fast to set that up. I very much hope that expand the work on secondary legislation—will also the colleagues sitting on the other side of the Leader give the House the ability to do its side of things. We will accept the Motion that we passed today. In that will certainly be working together to make sure that case this would be our last meeting on this Bill. We we have the functioning statute book that we want. have already thanked the Bill team again, but it would On that basis I hope that noble Lords will agree be wonderful if they did not have to come back. In the with the proposition that the Government have put meantime, they have at least another day’s work. For forward. the members of these committees, however, their work has just started. Motion R agreed. Baroness Evans of Bowes Park: My Lords, the Government’s amendments deliver to this House parity with the Commons, ensuring that all the expertise House adjourned at 7.14 pm.

Volume 791 Monday No. 154 18 June 2018

CONTENTS

Monday 18 June 2018