European Union (Withdrawal) Bill - Committee (11th Day)

– in the House of Lords at 11:05 am on 28th March 2018.

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Relevant documents: 12th Report from the Delegated Powers Committee, 9th Report from the Constitution Committee

Amendment 353 not moved.

Schedule 5: Publication and rules of evidence

Amendment 354

Moved by Baroness Bowles of Berkhamsted

354: Schedule 5, page 38, line 35, at end insert—“( ) an EU directive;”

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

My Lords, my amendment would add EU directives to the list of relevant instruments that the Queen’s printer must make arrangements to publish. I briefly flagged the point of the amendment when we debated recitals with regard to interpretation and Clause 6(3) on 7 March. Anyhow, in those previous exchanges, and since, in the letter of 13 March from the Solicitor-General to Robert Neill MP, it has been confirmed that recitals have an ongoing role in interpretation of retained EU law. There are several interesting points in the letter and footnotes, but for the benefit of the House I will read out just a small part, which says:

“For example, the Treaty base of EU legislation, its recitals, and the working papers prepared in advance of its adoption, may all be referred to at the moment. Our courts are well-versed in this, and in dealing with the differences that exist between the interpretation of domestic law and EU law. As such clause 6(3) of the Bill should not disturb the existing approach taken by our courts”.

I still have an ongoing concern that I raised regarding post-Brexit loss rights of challenge in court, and on which I have written to the noble and learned Lord, Lord Keen, but from the interpretation point of view it is clear that recitals and other parts of directives are available for interpretation. On that basis it seems to me that directives are not just any old other EU instrument; they should have a rank prescribed in the Bill and not left to the possible halfway house of it being done at the discretion of the Queen’s printer or for there to be special rules about their admissibility.

Recitals and indeed whole directive texts and their empowerments will not only be a last resort to reference by the court; it is quite likely that, post Brexit, a lot more notice will be taken of them than previously, especially in those areas where any kind of regulatory alignment is sought. I understand from a ministerial meeting that the Treasury is certainly thinking that way.

What happens if there is no automatic publication by the Queen’s printer? As I said, it could be that the Queen’s printer does it under paragraph 1(3) of Schedule 5, but that is not certain, or under part 2 on rules of evidence in Schedule 5, and in particular paragraph 4, where it would be necessary for there to be regulations to enable documents that were not published by the Queen’s printer to be admissible, and they would have conditions around them. It may just be for certification, of course, but that does not reflect the status of this important category of EU instruments from which a great deal of retained EU law derives.

Directives need to be added to the list of relevant instruments, as I suggest in my amendment, or some other provision should be made in Schedule 5 for this important category of documents. If there is a need to make exceptions to publishing some directives or parts of them, those powers exist in paragraph 2, and I agree with the amendment in the next group that it should require regulation to make that exception, but directives should be of a category that is in unless taken out, rather than out but can be opted in. I beg to move.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, there seems to be a great deal of sense in the amendment, partly because of the provisions of Clause 6, and partly because it is important that the businesses that will be trading into the European Union have ready access to all relevant documents. They will be regulated by directives which set out the principles with which they must comply. The noble Baroness is quite right to move the amendment. Unless there is some compelling reason—which cannot be cost, because that must be very small—I hope it will get a favourable reception from my noble friend.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, it is indeed striking that directives are not included in Schedule 5, part 1, paragraph 1(2). The reason may be that directives are given a very odd status under Clause 4(2)(b), which we debated on a previous day. Under Clause 4(2)(b), retained EU law does not include rights which arise under an EU directive when they are,

“not of a kind recognised by the European Court or any court or tribunal”,

in this country,

“in a case decided before exit day”.

We debated the complexities, the uncertainties and, as I see it, the unsatisfactory nature, of the clause. Is that the reason why directives are not included in Schedule 5, part 1? If not, what is the reason?

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, I support my noble friend’s valuable amendment. I wonder whether the Government are being as transparent as they ought to be. After all, there have sometimes been well-founded suspicions of gold-plating of directives and, in contrast, of not entirely full or accurate transposition of directives. I am sorry to repeat myself, but I gave the recent example of the European investigation order, which was not transposed in regulations last December with exactly the wording in the directive. The European Convention on Human Rights has been substituted for the charter, which is in my opinion a breach of the accurate transposition of the directive.

Not only during the transition but well into the future, businesses and all citizens will be obeying a lot of the acquis of EU law, if the Prime Minister’s emerging strategy of staying plugged into many EU policies and agencies one way or another comes to fruition. Therefore it is right for businesses and individuals to be able to see how EU law in directives, which unlike regulations, does not have direct effect, has been translated, transposed into UK law, so that they can track its accuracy. This is a long-running theme in the European Parliament, as my noble friend will know. Indeed, the Minister will know that there was an attempt to campaign in the European Parliament to have what was known in the jargon as “correlation tables”. It was possible to see exactly how EU law had been translated into national law in all EU states.

Funnily enough, the member states never wanted that to happen. They got away with a bit of smoke and mirrors of people not understanding where law had come from at the European level, or where it had not. Where something had been added at national level that was sitting in some dusty drawer in Whitehall and this convenient vehicle of an EU directive came along, they said, “Right, we’ll just slap into that things we’ve long thought about and no one will realise that it didn’t come from Brussels”. Well, people need to know whether it came from Brussels or not. The kind of transparency that my noble friend is seeking would be extremely useful.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Business, Energy and Industrial Strategy), Shadow Spokesperson (Exiting the European Union), Shadow Deputy Leader of the House of Lords 11:15 am, 28th March 2018

My Lords, it may not be possible to answer my question today, but it is an important one. I would have put down an amendment at the end of Amendment 354 to use two additional words: “in English”. Once we leave the European Union, there will not be an English-speaking country that chooses English as its language. The Maltese have accepted Maltese as the language, the Irish chose Gaelic. It is only the United Kingdom for which English is the language.

In future, for all sorts of reasons, it will be interesting to know whether the Government will ask or, I hope, negotiate that English remains for the production of EU documents. For myriad reasons, not least business, we will need to know that. If the Minister cannot answer my question about negotiations now, it would be useful if she could report at some point in the future.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

My Lords, may I first of all, in English, thank all who have contributed to the debate? I know that to some it may seem anorak territory, but knowing where to find law and being able to access law are matters of fundamental importance. Before coming to the specifics of Amendment 354 in the name of the noble Baroness, Lady Bowles, it may be useful to provide some context for the debate.

Part 1 of Schedule 5 serves an important purpose, which was picked up by, among others, the House of Lords Constitution Committee and the Bingham centre. Specifically, it is a recognition of that vitally important factor of the law being publicly available and accessible after exit day. Part 1 therefore provides for a combination of duties on and powers for the Queen’s printer to help to ensure that this happens.

I will be clear about what the provisions involve. There are differences between how part 1 of Schedule 5 is sometimes described and what it actually does. It is designed to ensure that retained EU law is sufficiently accessible but it does not, for the avoidance of doubt, impose a duty on the Queen’s printer to identify or publish retained EU law itself, or any subset of it. Instead, it imposes a duty on the Queen’s printer to make arrangements for the publication of the types of EU instrument that may become retained direct EU legislation, being regulations, decisions and tertiary legislation. It also requires the publication of several key EU treaties and confers a power on the Queen’s printer to publish other related documents.

I recognise the important issue the noble Baroness seeks to highlight by her amendment. Directives are an important part of EU law at the moment, and may be relevant to retained EU law in some cases, but they are not covered by the duty to publish which I have just outlined. That duty is focused, as I explained, on instruments that may become retained direct EU legislation, which of course in terms of the Bill directives cannot.

Photo of Viscount Hailsham Viscount Hailsham Conservative

People trading in the European Union need to know the status of the requirements that they have to adhere to when they are trading into the European Union. Directives can be relevant to that.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

I was about to come on to that point, as it was raised also by the noble Lord, Lord Pannick. Directives have been implemented in domestic law—they are already there—so they do not need retaining in and of themselves, which is a distinction that I am trying to make in terms of how the Bill is drafted, but they remain available for the purposes of interpreting retained EU law. They are available for that purpose no matter what the Queen’s printer may do.

That said, sub-paragraph (3) of paragraph 1 also allows, but does not require, the Queen’s printer to publish certain other documents and instruments. Since the noble Baroness tabled her amendment, work has progressed further, and I am happy to confirm that the National Archives, which exercises the functions of the Queen’s printer, intends to make pre-exit day directives available online. I hope that I have reassured the noble Baroness and ask that she withdraw her amendment.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

I thank noble Lords who have supported the amendment. If something is present in the National Archives, I wonder whether that means that it can then automatically be relied on in court without there being any necessity for certification or other requirements. If that was the case, it would fulfil the point that I was trying to make—there are other points that noble Lords have referenced. I did not want it to be that, in order in a court proceeding to reference a directive or draw the judge’s attention to it, one had to remember to go through the certification process, especially if there were a lot of them.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My noble friend is much more an expert than I am on these technicalities, but other noble Lords as well as I have talked about more general accessibility for citizens and businesses. Someone like me knows that I can just put the number of the directive in Google and, hey presto, I get the Official Journal. However, it being in the National Archives is not as good as it being in whatever series is published under Schedule 5. If this is to be done in some voluntary capacity, why is that good enough? Why cannot it be in the Bill? It seems a very British solution: “Oh, well, it’ll be in the National Archives”. No one will be able to find it because they do not know that it is there. It might or might not be okay for the technical purposes that my noble friend is talking about, but it will not be squarely there in a series that can be made known. I cannot understand the Government’s logic.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

I thank my noble friend for that intervention. She also made some important points earlier about what has come into our law allegedly from directives. I must say that, since I have been looking at this withdrawal Bill, I have become astonished by what has been done under the European Communities Act, which I do not think I would have wanted if I had gone back and made the European Communities Act again—but that is a digression.

There are two outstanding points: whether you need to do anything to get it into court for technical purposes; and what the visibility is for citizens. I must say that anybody who thinks that our legislation is at all visible should go on to the government website and wander around it. If they are hoping to find out what the current law is, the first thing they will see is that the site is not up to date. I find it a far sight easier to find up-to-date European law, but again, I digress.

With the proviso that it may be necessary to return to this—possibly the Government will bring forward an amendment or provide further explanation—I beg leave to withdraw my amendment.

Amendment 354 withdrawn.

Amendment 355

Moved by Lord Lisvane

355: Schedule 5, page 39, line 18, leave out sub-paragraph (3) and insert—“(3) Any direction given under this paragraph must be contained in regulations.”

Photo of Lord Lisvane Lord Lisvane Crossbench

My Lords, this amendment is in my name and those of my noble friend Lord Pannick, my noble and learned friend Lord Judge and the noble Lord, Lord Tyler. It is grouped with Amendment 355ZZA in the name of the noble Baroness, Lady Bowles of Berkhamsted, which I venture to suggest has a great deal of merit.

Amendment 355 may appear to address a minor matter but it is an important matter of principle. The exception from the duty to publish provided by paragraph 2(1) of Schedule 5 depends on a Minister being satisfied that a relevant instrument, as defined in paragraph 1(2) of the schedule, has not become or will not become on exit day retained direct EU legislation. I entirely appreciate the argument that, in that case, there may be little point in publishing some or all of it. However, where the argument goes off course is that, while paragraph 2(2) allows a Minister to give a direction to the Queen’s printer not to publish a specified instrument or a category of instruments, paragraph 2(3) allows this to be done by mere ministerial direction.

The Delegated Powers Committee, of which the noble Lord, Lord Tyler, and I are both members, was critical of this. At paragraph 49 of its 12th report, the committee said:

“Amending the law by direction … is highly unusual. The delegated powers memorandum”— that is, the Government’s delegated powers memorandum to the committee—

“justifies this on the ground that it is a ‘limited administrative power’. Even so, to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent. Such a direction is what Henry VIII might have called a proclamation”.

It does not matter that this power is proposed to be used in relatively uncontroversial circumstances and that the identification of any instrument or category of instruments may be relatively straightforward. The important point is what the Delegated Powers Committee calls an “ominous precedent”. This may seem a little Cassandra-like, although I think that the Delegated Powers Committee is believed rather more often than was Cassandra with her repeated nul points, but, right on schedule, along comes the Taxation (Cross-border Trade) Bill, which makes much use of the unwelcome concept of making law by public notice—in effect, by proclamation, with no role at all for Parliament.

In the referendum campaign, much was made of parliamentary sovereignty, and it has been a recurrent theme of our debates in Committee. I suggest that we should be sharply aware of procedures or processes that tend to diminish or extinguish the role of Parliament in favour of that of the Executive. I beg to move.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I have added my name to this amendment and I agree entirely with what my noble friend Lord Lisvane has said. I simply add that sub-paragraph (3) is also objectionable. It states:

“A Minister of the Crown must publish any direction under this paragraph”.

However, it does not even say how or where the Minister is to publish. It gives complete discretion to the Minister.

I also have a wider concern about paragraph 2: that is, the power for the Minister to create an exception to the duty of the Queen’s printer to publish retained direct EU legislation. The Minister recognised in the previous debate, and appropriately so, the importance of the law being publicly identifiable so that everyone knows what the corpus of retained EU law is. However, paragraph 2 contradicts that. To give a discretion to the Minister to exclude something from the material that is to be published by the Queen’s printer if the Minister takes the view that a relevant instrument will not become direct EU legislation leaves matters completely uncertain. I suggest that a much more sensible approach is that, if the Minister takes the view that a particular instrument is not becoming retained direct EU legislation, the Minister should have a duty to ensure that it is not included in the material that is to be published by the Queen’s printer.

What we want, and what the public are entitled to have, is a body of material that in the view of the Government constitutes the retained direct EU legislation that is to become part of our law. These matters should not be left to the discretion of Ministers.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform) 11:30 am, 28th March 2018

My Lords, as a co-signatory to the amendment, I want to make a short contribution in support of the reference by the noble Lord, Lord Lisvane, to the work of the Delegated Powers and Regulatory Reform Committee and to pay tribute to our legal advisers, who are not only expert and experienced but amazingly diligent. The noble Lord referred to the committee’s work on the Bill, but he did not make direct reference to paragraph 93 of our third report to the House, the last sentence of which reads:

“The Statute of Proclamations 1539, which gave proclamations the force of statute law and later gave rise to the term ‘Henry VIII power’, was repealed in 1547 (after the King’s death earlier that year)”.

I have not been able to do the necessary follow-up research but, as I understand it, our 16th-century predecessors put around the statute of limitations some additional restrictions that are not in this Bill. As a former Member of the other House, I think that it would be extraordinary if the two Houses of Parliament allowed this to go through. It may seem a minor matter, but in terms of precedent it is extremely important. If we let it through, it seems that we will not have done our job as well as our 16th-century predecessors.

The work that is done by the Delegated Powers Committee is well respected in your Lordships’ House and I am delighted that that is the case. In saying that, I want to make sure that Members of the House know that we have the advice of some extremely assiduous lawyers. I think that the advice that we give the House usually benefits from that. I am not always a huge fan of lawyers, but in this respect I think that we are very well served.

Photo of Lord Judge Lord Judge Judge

My Lords, we come to the next stage of the slow journey of this Bill through the House. I shall look at Clause 9 again and address the issue of what the Act of proclamations provided, but just as a footnote I remind the House that the statute provided in categoric terms that a proclamation could not overrule a statute. One tends to overlook that. Everyone is absolutely riveted, are they not? Schedule 5—what an exciting topic to come to first thing in the morning. The problem, though, is that tucked away in this schedule, as frequently happens, is an issue of principle. That issue is, simply, and I support what the noble Lord, Lord Lisvane, says, that we are giving an unnecessary, or inappropriate—I do not mind which word we use for these purposes—surrender of power to the Executive. We really must break that habit.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, to go slightly beyond the terms of the amendment, as foreshadowed in the words of the noble Lord, Lord Pannick, the issue of principle appears to extend to giving the Government the power not only to decide whether something is to be published but to decide whether they are satisfied that it is retained direct EU legislation. Following the debate on the amendment in the name of the noble Lord, Lord Patel, about clinical trials regulation, there have been exchanges and meetings.

Apparently, I am wrong about that. I am told that at some point I will get a blow-by-blow explanation. The Minister sighs, but no one has actually explained. There is a contradiction between the drafting in the Bill and the Explanatory Notes. The Minister is looking at me as if I am stupid. I am sorry about that, but we need to know the criteria by which the Government will precisely decide whether an EU measure is retained EU law and, preferably, have a list of those measures. That would be transparent. We need both the criteria and the list. We cannot just leave it to the Government to decide not only whether they publish but whether an instrument is retained EU law. This has massive consequences in the real world, as does the clinical trials regulation. Researchers are leaving the country because they do not know whether we are going to continue to apply EU law. This is not nothing; it is an important matter.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, this is very important and the noble Baroness is entirely justified in getting a little worked up about it. I spent 40 years, almost to the day, in the other place. I never had a ministerial office and I was always deeply suspicious of Ministers exercising arbitrary power and of any measure that extended the opportunity for Ministers to exercise such powers. My noble friend Lord Hailsham intervened in the debate earlier this week to remind me—not that I needed reminding—of the importance of the Back-Bencher. The Government must always be answerable to Parliament. Giving a Minister an extra arbitrary power, be it in ever such a small degree, enables them to evade answerability to the elected House.

We are fortunate to have committees—the Constitution Committee and the committee of which the noble Lords, Lord Lisvane and Lord Tyler, are members—that act as watchdogs on behalf of this House and Parliament. As this Bill leaves our House, which it will do in a month or two, and goes back to the Commons, it must have been tightened up in as many particulars as possible so as to guarantee as much power as possible to the elected House.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

My Lords, I will speak to the amendment in my name, in case other noble Lords want to come in on it. It relates to Part 2 of Schedule 5, on the rules of evidence. It is about regulations again, but in a different part of the schedule. I am sensitive to powers that potentially change what may or may not be available as evidence. This is a constitutional point, especially if it means disappearing cases or defences. I therefore find the provision in paragraph 4(3) of Schedule 5 too wide. It permits regulations under paragraph 4 to modify any provision made by or under any enactment made up to the end of the Session in which this withdrawal Bill is passed. That is basically all legislation until then.

I have tried to work out why this provision is needed and what it could do if abused, for that is the standard that we must measure against. In many discussions on wide powers, Ministers have protested good faith. Many of your Lordships have not doubted them but have still wanted safeguards, while others of your Lordships, including distinguished privy counsellors on the government side, have warned—or maybe confessed—that Ministers will abuse powers and have likewise suggested safeguards. This is all part of the “appropriate” versus “necessary” argument.

I was struck last Wednesday that, when the boot was on the other foot, the Government were less keen on having to rely on trust. About devolution, the noble and learned Lord, Lord Keen, said:

“If we look to the issue of consent, rather than consultation, let us be clear that it is not a question of trust but of constitutional propriety”.—[Official Report, 21/3/18; col. 403.]

I accept that the context is different, but the point that many of us have been trying to make about many powers in the Bill is just that: it is a matter of constitutional propriety between the Executive and Parliament and, indeed, the freedoms of the people.

Here we have another such power, even if it is small. It does not seem right that rules of evidence for admissibility could be changed, maybe quite widely, by amending any Act of Parliament, not necessarily limited to the consequences of Brexit. I have suggested adding a limitation, which would not allow use of the power for reducing the scope of what is admissible except for the purpose of replacing EU references with domestic ones. I thought that limitation was additionally relevant because the power to amend all pre-Brexit legislation seems to be perpetual. I was first inclined just to delete it, but I hope that my amendment will give the Minister an opportunity to clarify the kind of circumstances that are envisaged for the power, why it should be perpetual and whether some limitation could be envisaged to address my concerns.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I have a brief observation on Amendment 355. I agree entirely with the points of principle that have been articulated by my noble friend Lord Cormack, by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Tyler. Let me make a practical point. If the Minister makes an exception and gets it wrong, people dealing with the European Union may find themselves non-compliant with regulations that are in force and thereby exposed to some form of penalty or disadvantage. The advantage of the amendment is that it would reduce that possibility by a small degree. It is worth guarding against the risk if we can.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

My Lords, the Minister remarked that the previous amendment was slightly nerdish and that we were dealing with technical issues. That is absolutely the role of this House. We are intended to deal with the details of Bills. We have already spent more time on the Bill, before we have reached the end of the Committee stage, than the House of Commons spent on all stages. That is appropriate—and necessary.

We should not underestimate how far these technical, constitutional, nerdish issues have resonance outside. I have seen the term “Henry VIII powers” in the columns of the Yorkshire Post. I should tell the noble Lord, Lord Callanan, that I found myself last Saturday addressing several thousand people in Leeds on a Stop Brexit march. In a short speech, I mentioned in passing that the House of Lords had just defeated the Government on a question relating to Euratom. A great cheer went up from the crowd. Until that point, I would have thought that there were at most 200 people in Yorkshire who understood what Euratom was—most of them medical doctors of one sort or another. If several thousand people think that the question of Euratom is important, we should not underestimate the public and those who care about detailed issues in the Bill, in particular executive control versus parliamentary sovereignty and the extent to which the Government may be taking powers in the Bill that a future Government of a different complexion might use and abuse. These are not entirely nerdish and technical matters; they are actually rather important politically.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip) 11:45 am, 28th March 2018

My Lords, I thank all who have contributed to this debate; very important points have been raised. This subject may be academic and technical but the issues are important—and to me, they are actually very interesting. I say to the noble Lord, Lord Wallace of Saltaire, that I think there are a lot of worse ways of spending a wet Wednesday morning than looking at these issues.

In responding to Amendment 355, I would like to take the opportunity to explain the Government’s approach, and explain why we do not consider it necessary or practical to require the making of secondary legislation. Taken together, paragraphs 1 and 2 mean that the Queen’s printer has a duty to publish all relevant instruments in respect of which it has not received a direction. The direction-making power, therefore, is already clearly limited in its scope. I acknowledge the concern, as articulated by the Delegated Powers and Regulatory Reform Committee, that the direction-making power in paragraph 2 is akin to allowing Ministers to change the law by proclamation. The noble Lord, Lord Lisvane, colourfully referred to that. However, the Government respectfully disagree with that characterisation. The power in paragraph 2 to exempt the Queen’s printer from the duty to publish in relation to certain instruments or parts of instruments is, I would submit, a targeted, common-sense provision to enable the Minister to narrow what is—as I hope I have explained in my previous remarks—the necessarily wide task of the Queen’s printer.

This power does not enable a Minister, by decree, to determine what is or is not retained EU law, nor is it designed to prevent some aspects of retained direct EU legislation being published. I would remind the House that any directions under paragraph 2 must be published. So there is no secrecy here; the process is transparent. I did note the concern of the noble Lord, Lord Pannick, that there was an absence of detail on the mode of publication. I have no specific information about that. I would imagine that it would follow existing practice. However, I shall certainly undertake to write to him about that aspect.

The National Archives is already looking at how the various directions to the Queen’s printer will be made available on legislation.gov.uk, to make access to them easier still.

Accordingly, the Government do not consider that this direction-making power can fairly be characterised as an alarming extension of executive power, or as setting an ominous precedent for the future. The law needs to be made publicly available—that is a given—and we need a proportionate way to achieve this. A targeted, carefully circumscribed power for a Minister to give directions in relation to a body is not unprecedented or harmful. I noted that the noble Lord, Lord Tyler, was deeply concerned about the operation of this provision, and the noble and learned Lord, Lord Judge, was, I think, predictably suspicious. So let me try to provide an illustration.

For example, under Section 92 of the Energy Act 2013, the Secretary of State may direct the Office for Nuclear Regulation as to the exercise of its functions, generally or specifically. In 2017, the Secretary of State did make such a direction as to the supply of information in relation to the nuclear safety of civilian nuclear installations. I say to the noble Lord, Lord Pannick, that that direction was published online, so it was readily visible and accessible. The alternative option put forward in the amendment of the noble Lord, Lord Lisvane, would be to require any such directions to be made in secondary legislation. Such an approach would in our view be unnecessary and potentially counterproductive. It would also impose an added burden to the volume of regulations which we can anticipate following from this legislation.

Photo of Viscount Hailsham Viscount Hailsham Conservative

If it has to be done by regulation, it gives this House and the other place at least a theoretical possibility of saying that the Minister should not make the exception, because the regulation or directive is, in fact, retained EU law. The citizen must be in a position to have access to what is relevant retained EU law. If it is not done by regulation, there is no way of challenging the Minister’s decision on that point. Surely, is that not objectionable in principle?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

This is all about trying to ensure that the statute book does not become cluttered with material which is irrelevant, not competent under the Bill and not within the scope of retained EU law as we have defined it.

Photo of Lord Beith Lord Beith Liberal Democrat

We would all agree with the principle that the noble Baroness has just advanced—we shall adduce it when trying to remove some other bits from the Bill later today. However, she seems to be advancing the proposition that it is for a Minister to say that something is not part of the law, because of something that the Minister judges makes it invalid. The constitution has never given that role to Ministers. Courts decide what the law is if the matter is in doubt, not Ministers. To say to the people at the National Archives, whom I visited on one occasion—a small and diligent group huddled over computer screens which have replaced scissors and paste—“Do not print it”, is not an answer to a question of doubt about the law.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

If we can set to one side any concept of malevolence or malign intent on the part of the Government or a Minister, perhaps we can accept that this is a genuine attempt to provide simplicity. If a Minister in a department perceives that an instrument or one of the elements of EU retained law is no longer applicable and is not going to fit in with the new body of law, it is desirable that clarification can be provided in the swiftest possible way and that it should not make its way to the Queen’s printer. I appreciate that there are deeply felt views about this, and I am certain that we will come to this again on Report. I am merely trying to indicate to the Committee what the Government think is not just a sustainable position—

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

I am full of admiration for the way in which the noble Baroness appears to be trying to avoid the suggestion that it is executive expediency that is going to determine how this issue is going to be addressed. I think she knows that if she had used that phrase, people all over the House would have said: “We are not into that business”. Perhaps she could be a bit clearer about what considerations she thinks would be in the Minister’s mind to take this particular action.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

It is a little difficult to predict specific examples. Many of your Lordships have had experience of ministerial positions. I imagine that if an anomaly were brought to the attention of the Minister that something was not going to apply; it was no longer relevant; it did not fit in the new framework of what will be a body of UK law, the Minister would be reasonable in trying to ensure that that element, whatever it was, did not appear to make its way via the Queen’s printer on to what is perceived to be the body of law for the UK.

Some may argue that that is inherently flawed and a deeply suspect way for any Government to behave. In the extraordinary situation in which we find ourselves— I suggest that outside of wartime this situation is unprecedented—common sense has to be applied. There has to be a proportionate way of balancing legitimate interests in the constitution with the practical need to make sure that we do not create nonsense in the statute book.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

Surely this comes about when the Government are dealing with the so-called deficiencies and then coming out with the statutory instruments to make those right. Why can you not identify it at that stage and make it part of the regulation? That is the point at which the comparison with what does not work in EU law is made. Why cannot it be part of that regulation? Whether it is under Schedule 5 or something else, as the empowerment does not really matter, it is properly done.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

The noble Baroness is quite right: there may be an overlap of issues where there is the desire to legislate positively about something as well as taking into account something that is no longer relevant. What I am saying is that where there is a patent misfit because something no longer applies to UK law, I think it is sensible in those circumstances to let the Minister try to ensure that there is no confusion, in that it does not make its way into what is in public view as representative of the body of law.

Photo of Baroness Kramer Baroness Kramer Liberal Democrat Lords Spokesperson (Treasury and Economy)

Surely there is nothing wrong with a Minister proposing that something is not relevant and appropriate, but to make the final decision on that with no capacity for challenge is completely out of order. That is not a responsibility that should be placed on any member of the Executive.

Photo of Viscount Hailsham Viscount Hailsham Conservative

Before my noble friend responds to that, I wish to make a similar point. If a direction is published, that is after the event; whereas if it has to be done by regulation, that in effect gives everyone the right to say that the Minister has got it wrong. That would be prospective rather than retrospective. Does the regulation procedure not have that advantage? It gives people the right to say the Minister has got it wrong.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

Well, I have listened with interest to these contributions. We will certainly reflect on what has been said. I understand the desire of the Chamber to get some whiff or wind of what the Minister might be contemplating and I can certainly undertake to look at what the noble Baroness, Lady Kramer, and my noble friend Lord Hailsham have said. I was going to go on, if I may be permitted to do so, to try to cover the point about secondary legislation, if I can pause for breath to do that.

Photo of Lord Pannick Lord Pannick Crossbench

The Minister is being very patient. I would like to add to what the noble Viscount has said. A real disadvantage of what the Government are proposing—that is, there is publication with no opportunity for the matter to be debated before it is decided—is that there is a means of challenge, and that is in court. It would be most unsatisfactory if the procedure that the Government adopt is that Ministers make a decision and publish a direction, there is no opportunity for debate in either House and then anyone who is aggrieved takes the matter to court. Surely it would be far better for this to be done by statutory instrument, and then any concerns could be properly debated.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

I hear the noble Lord, and I shall certainly reflect on that observation, but if I may be permitted to advance what the Government consider to be the case in relation to the proposition that this be dealt with by secondary legislation it might enable the Committee to understand why the Government have adopted the view that we have. The alternative option to require that any such direction is to be made of secondary legislation would arguably be counter- productive. The task of identifying instruments that will not become retained EU law will be a continuous one, and our awareness of such instruments will grow over time. I understand and respect the motives behind the amendment. I have to suggest that it would seem rather paradoxical to require the Government to legislate repeatedly in order to avoid the publication of the irrelevant EU legislation, but maybe I am being perverse in looking at it that way. The legislation required to ensure that our law operates effectively after exit day will be significant, and I respectfully suggest that we should try not to add to that task in this case. As I have said, though, many useful points have been raised on this complex question, and I shall reflect on all the contributions made. However, on the basis of what I have been able to say, I hope the noble Lord will feel able to withdraw his amendment.

Photo of Lord Newby Lord Newby Liberal Democrat Leader in the House of Lords

The Minister started her speech by saying one of the principal reasons why the Government were opposing this amendment was that what it proposed was “impractical”. I have been listening very carefully, but I do not think she has explained why it is impractical. She has explained a number of other objections that the Government have, but surely it is not impractical. It is perfectly possible to do it. It is just that the Government do not want to do it, for other reasons.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip) 12:00 pm, 28th March 2018

I disagree with the noble Lord. I was using “impractical”—if I did use it, and it is so long ago that I started my speech that I cannot remember what I said—in the context of what is reasonable and proportionate in all the circumstances.

I turn to Amendment 355ZZA—sounds a bit like a pop group—in the name of the noble Baroness, Lady Bowles. If I have understood the amendment correctly, the noble Baroness is concerned about regulations being used to diminish the evidential value of certain matters or documents. I agree that this is an important area which we want to get right. Part 2 of Schedule 5 ensures that the rules of evidence, currently in Section 3 of the 1972 Act, can be replaced and properly reflect the legal landscape post exit. The power in Part 2 of Schedule 5 enables a Minister to make provision about judicial notice and the admissibility of specified evidence of certain matters. For clarity, judicial notice covers matters which are to be treated as already within the knowledge of the court and so are not required to be “proved” in the usual way.

The power in part 2 of the Schedule covers a limited and technical, though important, area, and subparagraphs (2) to (5) of paragraph 4 set out the scope and limits of that power. While I understand the noble Baroness’s concern, and share her desire to ensure that the effective administration of court proceedings continues after exit, I hope I have reassured her that the regulation-making power is designed to do exactly that. In addition, regulations made under this power are subject to the affirmative procedure, as provided for in paragraph 9 of Schedule 7, so there will be a debate and a vote in this House before any new rules are provided for. On that basis, I would ask the noble Baroness not to press her amendment.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

My Lords, I query the comparison with war time. This is a very sensitive issue in the debate on leaving the European Union. After all, the leave campaign depicted the European Union as a continental—or German—tyranny, from which we would be escaping. Yesterday, Jacob Rees-Mogg talked about remainers as being like Japanese soldiers who had not yet realised that they had been defeated and liberated by the Americans. The Prime Minister’s Mansion House speech takes us in a very different direction. She talked about leaving, but recognising that our values and interests remain the same as those of the European Union; that we will remain closely associated with the Union. That is not something which one can compare with war time. It is a complicated disengagement process in which we are not entirely disengaging. It is not helpful to the public, or to the continuing debate, to make these comparisons.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

I hear the noble Lord. I did not in any way wish to draw a specific comparison between the two. I was simply describing the magnitude of constitutional challenge which is confronting the country. I had no wish to conflate the two situations in any way. The noble Lord is quite right that there are profound differences. If it caused concern, I apologise.

Photo of Lord Lisvane Lord Lisvane Crossbench

My Lords, I am grateful to the Minister for her lengthy and very detailed reply. I am also grateful to noble Lords who have taken part in the debate and expressed supportive views. Particularly telling were the twin points made by the noble Lord, Lord Pannick. The first was about the availability of the corpus of legislation and clarity and certainty on that point. His subsequent point, made in an intervention, was about the risks of challenge in the courts. The Government would clearly wish to avoid that. The noble Viscount, Lord Hailsham, made the helpful point that an enhanced process would allow it to be judged whether Ministers had got it wrong and for that judgment to be made in time.

The Minister answered the issue very much in terms of administrative practicality—pragmatism, if you will. She quoted some precedents—we have traded precedents on successive days in Committee, and some have been good and some have been less so. But an army of embryo precedents—if such a concept can be allowed—is about to march towards your Lordships’ House from the other end of the building in the form of the Taxation (Cross-border Trade) Bill, which I referenced in moving the amendment. I think we need to be very cautious about rather distant precedents contained, for example, in the Energy Act.

As I say, the noble Baroness answered very much in terms of administrative convenience, practicality and so on. She talked about the volume of the regulations. I do not think that a sensible solution is beyond the wit of man and woman to devise in this case. Could there not be a cumulative list of ministerial decisions on items of legislation that have been identified as falling within this provision on the DExEU website, so that everybody knows what is coming, which could be wrapped up in one SI every month or every six weeks? That would seem to me to reduce the burden.

The Minister was very kind to be concerned about the burden on the Queen’s printer and the National Archives. However, I am sure that, given their experience and resources, that is a burden which they are well capable of carrying.

Powerful as the Minister’s reply was on these administrative matters, I do not think that the volume of legislation—or transactions, if you will—is enough to outweigh the issue of principle that lies behind this. I know the noble Baroness will forgive me for this image, but when she touched, fairly briefly, on the issue of principle, I seemed to hear the desperate scrabbling of fingers on a rather treacherous cliff edge. She was much more certain on the issues of administrative feasibility.

The Minister did make one prediction with which I completely agree: this is an issue which is bound to arise once again at Report. On that basis, I beg leave to withdraw the amendment.

Amendment 355 withdrawn.

Amendment 355ZZA not moved.

Debate on whether Schedule 5 should be agreed.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am most grateful for this opportunity to probe the contents of Schedule 5 and debate whether it should be agreed. We have been told throughout the Committee proceedings that this is a technical Bill making arrangements to transpose existing EU law instruments such as regulations, decisions and Court of Justice case law which already exist on exit day into UK law. The two debates we have had today demonstrate the point that I would like to make: we have never embarked on an exercise of this scale and I do not think the Government are aware as yet what the scale of the exercise is.

I begin with one quick question. Paragraph 1(1) of Schedule 5 says that the Queen’s printer “must” make arrangements for the publication of each relevant instrument and so on. Yet under sub-paragraphs (3) and (4) of paragraph 1 we are told that the Queen’s printer “may” make arrangements. I wonder why there is a difference there. Under sub-paragraphs (3) and (4), who will exercise that discretion? For the purposes of this Bill, what are the instruments, how many are they and where are they?

With a number of other noble Lords, I was fortunate to have a meeting with my noble and learned friend Lord Keen, where I asked where these instruments could be found. I hope the Minister will be able to confirm that. It is rather surprising to learn that there is no central depository for such instruments in this country at this time. We are referred to websites to see what the range of instruments is. The first website is that of the Queen’s printer—the National Archives—and we see a blank screen. We have first to search through all the legislation; we have to have the title of the legislation, the year in which it was agreed and its number. We also have to know the type of the legislation and go through various categories. The only specific reference to EU legislation that I could see in the short research that I did was in respect of UK statutory instruments.

The second website to which we are referred is EUR-Lex, which is a widely used European legal search engine and the EU’s legal database. There again, you are faced with a screen in which you need to type in the document number, the year it was adopted, the type of instrument—regulation, directive, decision, European court case—and the body which issued it. That is what you have to enter before you can do any further search.

On the scale of the exercise, it is very clear from the Explanatory Notes that we do not know how many instruments there are—our preceding debates today have magnified that. We are told in the Explanatory Notes that, while there is no single figure for how much EU law already forms part of domestic law and how much will therefore be converted by this Bill, according to EUR-Lex, the EU’s legal database, there are currently more than 12,000 regulations which it defines as directly effective EU laws and more than 6,000 EU directives which will have been transposed and enforced across the EU. Additional research from the House of Commons Library indicates that in addition to that—I assume that it is in addition—around 7,900 statutory instruments have been made in the UK which have been implemented as EU legislation. There are a further 1,302 primary UK Acts of Parliament between 1980 and 2009, excluding those which have later been repealed, with 186 Acts in addition exhibiting a degree of EU influence, which means that they are UK law emanating from EU law.

If I was back in practice, as the noble Lord, Lord Pannick, and a number of other noble and noble and learned Lords are, and I wished to advise a client for the purposes of this Bill which instrument or decision is to be transposed, my understanding is that we simply would not know. Tomorrow, it will be only one year until we formally leave the European Union. I am sure that my noble friend the Minister will agree that this is a massive exercise. I want to put two simple questions to her. First, are we right to conclude that there is no centrally depository or archive for such instruments at this stage in this country, but that the information is held in the archives in Brussels? Secondly, can the Government put a figure on the number of decisions and other such instruments to be transposed for the purposes of this Bill into UK law as part of this exercise?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip) 12:15 pm, 28th March 2018

My Lords, I thank my noble friend Lady McIntosh for her comments. In response, I will need to be fairly brief. Clause 13 gives effect to Schedule 5, which is a technical but important part of the Bill. Quite simply, Schedule 5 seeks both to ensure that our law is sufficiently accessible after exit day and to provide for rules of evidence replacing those currently in the European Communities Act. I acknowledge my noble friend’s intention to oppose that Schedule 5 stand part of the Bill and will try to persuade her otherwise.

Paragraph 1 of Schedule 5 requires the publication of relevant instruments defined in the schedule as those that may form part of retained direct EU legislation and the key treaties likely to be of most relevance to, or to give rise to directly effective rights et cetera forming part of, retained EU law under Clause 4. My noble friend will understand that, after a period of more than 45 years of membership of the EU, a huge body of law has developed. Without wanting to seem patronising, that is exactly why this Bill before us is so vitally important. We want to make sure that all the protections, rights and benefits that our citizens in the UK have enjoyed under that huge body of law will flow seamlessly on exit day into our UK domestic law.

On the specific question that my noble friend asked about whether there was any central archive, I am not aware of any specific central archive, but I shall certainly have officials look at that and I shall undertake to write to my noble friend.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Could the Minister also deal with the question of Scotland? As I understand it, the Queen’s printer applies only for England, Wales and Northern Ireland. There is a separate Queen’s printer for Scotland, under Section 92 of the Scotland Act 1998, who is responsible for Acts of Parliament for Scotland. Does not that create some problems in relation to the drafting of Schedule 5?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

I do not have a response to that specific point, but I shall certainly undertake to write to the noble Lord and provide more detail.

I revert to my noble friend Lady McIntosh, who I think sought a figure for the number of instruments or individual components of law. I am unable to provide that; I do not think that such a figure exists. Obviously, a lot of work has been done across departments to ascertain what is likely to affect the activities within departments and what is likely to become part of retained EU law post exit day. Again, I shall double-check that and, if there is any more information that I can give in that connection, I shall do so.

The remaining provisions of paragraph 1 provide for the power to publish other documents, such as decisions of the Court of Justice of the European Union or anything else that the Queen’s printer considers useful in relation to those things. It also ensures that, in accordance with the snapshot, anything repealed before exit day, or modified on or after exit day, does not have to be published. This is supported by the targeted and what I have already described as common-sense power in paragraph 2 to enable Ministers to narrow the task of the Queen’s printer by ensuring that instruments that are not retained EU law do not have to be published. We have had an interesting debate on that and I have given certain undertakings to look at the contributions from Members.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I have another query. We are all talking about the Queen’s printer. As I have said, that is the Queen’s printer applying for England, Wales and Northern Ireland. Can the Minister tell us who the Queen’s printer is? As I understand it, the Queen’s printer has responsibility—and it is a good job that we have two Bishops here—for printing the Bible, I think in the King James version. I have just had a nod from a Bishop, which is very exciting. I think that the Queen’s printer may currently be Cambridge University Press, but I may be wrong on that. Everyone including the Minister is talking about the Queen’s printer, but hands up who knows who it is? There are not even hands up in the Box. I know that the Minister is the fount of all knowledge, so who is the Queen’s printer?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

I can always rely on the noble Lord to lighten the proceedings and introduce an element of light relief. I do not imagine that the Queen’s printer is some inky-fingered individual stabbing away in a dark basement. If the Queen’s printer is as busy as the noble Lord implies, the less we give them to do, the better. That is why I think that the direction to exclude things from the Queen’s printer would be very timely. I shall of course find out more information for the noble Lord.

Photo of Lord Lisvane Lord Lisvane Crossbench

I wonder if I could, as they say, be helpful. I think that the Queen’s printer is the Keeper of the National Archives, who also holds the title “Queen’s Printer”.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

I am grateful to the noble Lord, Lord Lisvane. As the late FE Smith, said, I am no wiser but I am certainly better informed.

Photo of Lord Adonis Lord Adonis Labour

I suggest that the noble Lord, Lord Lisvane, becomes the Queen’s printer, because he is far more knowledgeable about these matters than anyone else in the country.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

I do not wish in any way to diminish the talents of the Queen’s printer, whoever that person or group of persons is or wherever they dwell, but I think that the noble Lord belongs in this Chamber making the powerful and important contributions that he does.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

The noble Lord, Lord Lisvane, has been helpful to an extent by saying that the Queen’s printer is the Keeper of the National Archives. However, that raises the question: who is the Keeper of the National Archives?

Photo of Lord Cormack Lord Cormack Conservative

His name is Mr Jeff James.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

Then I offer a heartfelt tribute to Mr Jeff James.

Photo of Lord Lisvane Lord Lisvane Crossbench

If it assists the noble Lord, Lord Foulkes of Cumnock, he is also the Queen’s printer for Scotland.

Photo of Lord Beith Lord Beith Liberal Democrat

I recommend that the Minister and other Ministers pay a visit to Kew, which is a very nice place, and have a look at the small but diligent unit that tries to maintain an accurate record and account of what the law of this country is.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip)

My Lords, if we do not get through this debate, I will not be visiting anywhere. I must thank a group of your Lordships for their fascinating contributions, some of which have eliminated my need to write to anyone about anything. Still, I shall look at Hansard.

In the view of the Government, the mixture of defined duties and specific powers provided for in part 1 of Schedule 5 strikes the right balance. I say to my noble friend Lady McIntosh that it is comprehensive, flexible and accountable.

Part 2 of Schedule 5 ensures that after exit day questions about the meaning or effect of EU law can continue to be treated as questions of law and so can be determined by our courts when determining that such a question is necessary in order to interpret retained EU law. As I said earlier, it also contains a power, subject to the affirmative procedure, to make provision about judicial notice and the admissibility of evidence of certain matters.

I hope that my remarks have provided sufficient explanation of the rationale behind, and indeed the importance of, Clause 13 and Schedule 5 and why it is imperative that that clause and schedule stand part of the Bill.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, this has been an entertaining and illuminating debate. I am grateful to those who have pressed the Minister for answers.

I do not quite understand why there is a discretion in sub-paragraphs (3) and (4) of paragraph 1 of Schedule 5 for the Queen’s printer not to publish the instruments in question, because it would be difficult to find out what they are if they are not published. I look forward to hearing from the Minister how many there were in the last year—if we ever get a final answer. Could she also respond on the issue of why there is no discretion under sub-paragraph (1) when there is a discretion under sub-paragraphs (3) and (4)?

The Minister has confirmed the scale of the exercise that we will all be involved in. It was not my intention that Schedule 5 should not be part of the Bill; it was purely my intention to explore the fact that there is no archive and we do not know how many instruments of this type there will be.

Schedule 5 agreed.

Clause 18 agreed.

Clause 19: Commencement and short title

Amendments 355ZA and 355ZB not moved.

Amendment 355A

Moved by Lord Wigley

355A: Clause 19, page 15, line 18, at end insert “, subject to subsection (2A)”

Photo of Lord Wigley Lord Wigley Plaid Cymru

My Lords, in moving Amendment 355A, standing in my name, I shall speak to Amendment 357A. Both of these are paving amendments for the substantive Amendment 358A, also in my name, to which I shall address most of my remarks.

The amendment goes to the core of the Brexit referendum in 2016 and relates to a campaigning issue which undoubtedly swung many voters to support the leave campaign. This is to do with the amount of extra funding which would, supposedly, be available as a result of the UK decision to leave the EU. The amendment also addresses the guarantees that were given to Wales—and to Scotland and other parts of the United Kingdom—that all the funding coming from the EU would be replaced by UK Treasury funding so that, in this context, Wales would not miss out.

Amendment 358A proposes that this Act does not come into force until the UK Government have laid a report before Parliament, and the National Assembly for Wales, outlining how the money currently provided to Wales through the EU will be provided after Brexit. Such a statement in the Bill is needed in order to demonstrate to the electors of Wales that they were not led up the garden path in the referendum and that the Government do indeed intend to keep the promise, made by the leave campaign, that this level of funding will be maintained. I would be obliged if noble Lords will bear with me as I address those promises in greater detail.

I start with the outrageous £350 million a week that was promised to be channelled into the NHS as money returning from Brussels. That was a central part of the Brexit deal, equivalent to a manifesto commitment in a general election. It is a pledge which the Government, in signing up to deliver the other parts of the Brexit manifesto, are duty-bound to honour. If they feel obliged to deliver Brexit on the basis of the referendum vote, they must do so on the basis on which that vote was secured. That commitment was as applicable to Wales as it was elsewhere and it no doubt had an impact in Wales where the public services devolved to the Assembly are funded by the notorious Barnett formula. The NHS in Wales, as elsewhere, desperately needs additional funding. Indeed, Conservative Ministers—including the present Prime Minister—have derided the Welsh Government for not providing as much money to the NHS as was being provided in England. For a time that was true, but this was partly because the overall cake was inadequate. If an increase in health funding in Wales was the same as that in England, other services such as education would have been even harder hit. It was partly because of a decision by the Welsh Government to redirect some of the funding increase to social services, for the justifiable purpose of enabling hospital patients to return home earlier, thereby reducing the pressure on hospital beds. Whichever way, there was and there is a pressing need for additional funding for healthcare in Wales.

The vote to quit the EU was undoubtedly augmented, in part, by people swallowing the outrageous propaganda that £350 million a week would be coming to the health service. Even on the basis of the restrictive Barnett distribution, the NHS in Wales could therefore have expected something like £18 million a week more funding—£1 billion a year. That is a promise which was made and which the people of Wales expect to be fulfilled. My helpful amendment enables the Government to explain to the people of Wales how they intend to fulfil their pledge.

That was not the only promise that was made concerning post-Brexit funding. It has not gone unnoticed in this Chamber that those areas that voted most heavily in favour of Brexit in Wales were the old industrial valleys—the very areas which benefited most from European strategic funds. Since west Wales and the valleys were accorded what was defined as objective 1 status by the EU back in 2000, those areas most in need of economic support—defined as having under 75% of the average GDP of the European Union—received direct funding from Europe, which will have amounted over two decades to almost £4 billion. Obviously, at the time of the campaign, voters in those areas demanded to know what would happen to such funding. The Brexit lying squad, as it is known, true to form said: “Yes, of course, that money would be funded by the UK Treasury” so that such impoverished areas would not lose out as a consequence of leaving the EU. That was part of the deal and, as far as those areas are concerned, a central part of it. They voted out, and now they expect that promise to be honoured, not in some general way but specifically in terms of total aggregate funding and its being distributed not at the whim of Treasury Ministers but on a needs-based formula, just as the European funds have been distributed. If the Minister will give a copper-bottomed guarantee to the House today that this will be done, perhaps it will not be necessary to press the amendment. I wait to hear what assurances, if any, the Minister can give.

There is also the financial challenge facing rural Wales by the ending of the common agricultural policy, which will follow the implementation of the Bill. I well remember addressing several meetings organised by farming unions during the referendum. While the union leadership was committed to remain, individual farmers were being tempted to vote out, basing their case on the guarantees being given by the Brexit campaign that their funding was secure. It is now time to deliver. If farmers do not get a fair deal, they will be very angry indeed, as farmers certainly can be. The CAP currently pays some £270 million per annum to Wales, which amounts to about 9% of the figure coming to the UK from the CAP. That is about twice the per capita level because of the importance of agriculture to Wales. Will that sum be replaced in full by the Treasury in London? Can the Minister give a commitment that is not just a short-term fix for two or three years after Brexit but an ongoing pledge for the future, with no sunset clause to undermine the confidence of our farmers, since agricultural investment is a long-term commitment? If the money is distributed on a UK level, can he give an assurance that it will not be on a Barnett basis but on a needs basis or an inflation-proofed CAP existing provision basis?

In 2016, we were told by the Brexit campaigners that there were other European funds which would be equally safeguarded. Prime among these was the western seaboard counties of Wales having access to the Interreg funding, secured for Wales by the Conservative Government at the time of the Maastricht Treaty. It has helped to finance projects of benefit to the western seaboard of Wales and the corresponding eastern seaboard of Ireland. It has funded numerous small-scale projects in transport, environment, culture, and has made a valuable contribution to those areas. Several million pounds have been paid out by Brussels to Wales for Interreg support. Once again, at the time of the referendum, promises were made liberally around Wales that the areas benefitting from Interreg funding would be secure and that equivalent funds would be paid out by the Treasury to Wales and, no doubt, to other Interreg-qualifying areas.

That is the background to my amendments. They give the Committee the opportunity to write into the Bill statutory assurances that these EU sources of funding will be maintained. They should be guaranteed for the next 12 years, equivalent to two further rounds of European funding and as a pro rata equivalent to the funding which emanated from Brussels over the past decade. The element of this funding which replaces EU structural funds should be reviewed 10 years after Brexit and reassessed on the basis of whether the equivalent GDP per head in the designated beneficiary areas has reached 90% of the UK average figure. If not, the funding should be extended.

I make one final point, which I am bound to make in this context as I have before. We are frequently told that funds repatriated from Brussels should be administered on a UK-wide basis to ensure that equity is secured for every part of Britain. I understand that argument, but I am afraid that bitter experience has taught me that Wales just cannot trust the Treasury in London when it comes to safeguarding our economic and financial well-being. It pains me to say this, as I realise how much apoplexy it may cause some noble Lords opposite, but the truth is that we have been able to trust EU Commission officials in Brussels better than we can trust the Treasury in Whitehall. I mentioned this at Second Reading, but let me briefly explain again.

In 2000—the first year of our National Assembly’s existence, when I was leader of the opposition there, and the first year of the European objective 1 funding for Wales—the Assembly expected to receive from Brussels several hundred million pounds to finance EU projects. The money that Brussels sent for the benefit of Wales was dispatched via the UK Treasury and, surprise, surprise, it did not come through to Wales. After painstaking inquiries were made, it became clear that the Treasury had no intention of passing this money to Wales—

Photo of Lord Cavendish of Furness Lord Cavendish of Furness Conservative 12:30 pm, 28th March 2018

I am grateful to the noble Lord for giving way. Does he accept that those of us who live in Cumbria have watched with huge envy the largesse that has been directed at Wales?

Photo of Lord Wigley Lord Wigley Plaid Cymru

I have no doubt that Cumbria has its problems, and I have no doubt that people from Cumbria will speak up on its behalf. I support entirely that Cumbrian needs should be answered on a needs basis; we are arguing for exactly that for Wales. The current Barnett formula, as this House has recognised, does not provide that needs-based system for funding. So I accept entirely what the noble Lord says.

The point that I was making was that, back in 2000, the Treasury claimed that it already funded ambitious regional economic projects and that the European cash would be gratefully received as a contribution towards such spending. I sought clarification from officials at 10 Downing Street, but no clarification or assurance was forthcoming. In March 2000, I went to Brussels and met the EU regional commissioner, no less than a certain Monsieur Michel Barnier. He just could not believe what I was saying, since the EU funding was provided on the basis of additionality. He asked his officials—yes, those much-derided Brussels Eurocrats—whether what I said could possibly be true. They confirmed my account, and Mr Barnier asked me to give him a couple of months without making political capital on the issue, in which time he would do his best to sort it out.

The eventual outcome to this incredible episode was, as I may have previously mentioned, that as part of his spending review in July 2000 the then Chancellor Gordon Brown announced that the UK Government would be making a payment of £442 million to the Assembly to settle the account. Thereafter, Wales received the money from Brussels, which it had a right to expect.

So please do not tell me the nonsense about Wales being able to trust the Treasury in London more than it can trust Brussels. Such a claim flies in the face of our bitter experience. Unless we have safeguards built into law, there is no reason for us to believe that we can trust the UK Treasury or its Ministers with our future financial well-being. That is why I have proposed amendments to the Bill. If Wales, in the wake of Brexit, is to be thrown back at the mercy of Whitehall, God help us. I beg to move.

Photo of Baroness Humphreys Baroness Humphreys Liberal Democrat Lords Spokesperson (Wales)

My Lords, I am grateful for the opportunity to speak in support of Amendment 358A in the name of the noble Lord, Lord Wigley, and I thank him for tabling it.

Since 2000, the area of west Wales and the valleys has been in receipt of funding from the European Union. Everywhere one looks in west Wales and the valleys, one finds examples of the benefits arising from this—from the newly transformed Ponty lido to the upgraded railway stations in Aberystwyth, Carmarthen, Llandudno and Port Talbot, where we see the effects of a £21 million cash injection of EU funds. From the National Waterfront Museum on Swansea marina to the regeneration of south Wales valley towns, we see the benefit of millions of pounds from Europe.

We see schemes creating employment, breathing life into communities and improving the quality of people’s lives. In my own area, I have seen EU funding being used to build a new rural development centre, to convert an old mill to a teaching centre and an old school into a community centre and, perhaps, the project that is closest to my heart, for the upgrading of Nant Gwrtheyrn, the Welsh language and heritage centre on the Llyn peninsula. We have also seen major road improvements. The stretch of the A465 from Brynmawr to Tredegar, for example, saw £82 million of EU funding being poured in to help with its construction, helping to improve both safety and connectivity.

These are just a very few examples of the impact of EU funding on west Wales and the valleys. All this has been achieved with the aid of the main funding streams. It may be useful to remind ourselves of the aim of three of the streams and inquire of the Government how they intend to replicate them. The European structural funds have been used to support people into work and training; have supported youth employment, research and innovation projects and business competitiveness in the SME sector; and have overseen renewable energy and energy efficiency schemes. These funds are worth £2 billion from 2014 to 2020. What will replace them in two years’ time?

The common agricultural policy, as the noble Lord has already referred to, is, as those of us who live in Wales know, an essential £200 million-a-year scheme, providing payments to more than 16,000 farms in Wales to help to protect and enhance the countryside. What assurances can the Minister give about how these funds will be allocated in future, and on what basis?

The third scheme that I want to talk about is the Welsh Government Rural Communities—Rural Development Programme 2014-2020. It is a £957 million programme supporting businesses, farmers, the countryside and communities in rural areas and has been essential to areas such as the Conwy Valley, where I live. Could the Minister outline how the Government intend to support rural communities in Wales after 2020?

All this is in stark contrast to the dire lack of funding that came to Wales from the UK Government prior to 2000, which led to west Wales and the valleys being designated as one of the poorest areas in the EU and therefore eligible for objective 1 funding. I am sure that noble Lords will understand my scepticism about future funding commitments if, or when, we leave the EU.

The UK Government’s record on funding to Wales hardly fills one with confidence. It has been proved beyond doubt that the Barnett formula, by which Wales has received its funding for the NHS, education and so on, has been disadvantageous to Wales, yet no Government of any colour have been prepared to address the issues and reform the formula itself to ensure fair funding on a permanent basis. My noble friend Lord Thomas of Gresford and the noble Lord, Lord Wigley, have already spoken about this. In earlier debates on the Bill my noble friend Lord Thomas drew the House’s attention to the disparity in funding under the Barnett formula and voiced his fears that future funding to Wales will perpetuate the situation. As he has so clearly pointed out, the weakness of the Barnett formula in relation to Wales is that it is based on a crude population count, whereas EU funding has always been based on need.

It is certainly time for Ministers to be crystal clear about the amount of funding that will come to Wales—remembering, of course, that we were promised “not a penny less” during the referendum campaign. We need to know the basis on which the funding will be determined and the methods which will be used to distribute it.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Liberal Democrat 12:45 pm, 28th March 2018

My Lords, I usually sleep quite well, but last night I had a sleepless night. It was because I received a Written Answer yesterday from Defra about exactly how much farming support came from Europe. It stated:

“Across the UK £3.95 billion is provided a year under the Common Agricultural Policy. Of this, around 93% is funded from the EU, with around 7% being national funding under rural development programmes”.

So 93% is from Europe. If Brexit goes through, it could well devastate the Welsh agricultural industry. It is a catastrophic move for Welsh agriculture. We know that it already struggles. We have had years of blight in Welsh agriculture, but now we have a scheme going through that we do not have to approve: this House can stop it and, by so doing, stop that death blow to Welsh agriculture.

Photo of Lord Liddle Lord Liddle Labour

My Lords, I add an English voice in support of the amendment—a northern English voice and a Cumbrian voice. In deference to the noble Lord, Lord Cavendish, for whom I have great regard because of the work he does in Cumbria, I think that European funds have made an enormous difference to our prospects in the north. In our debates on the Bill, we have heard a lot of the voices of Wales and Scotland about how they should be treated in the light of Brexit, but we have heard very little about how the north of England should be treated. This reflects the fact that federalism in this country has not advanced far enough. We do not have a proper devolved system of government. It is an object lesson in how the interests of large parts of England are completely forgotten in a lot of our deliberations.

The noble Lord, Lord Wigley, is absolutely right that the £350 million a week claim on the bus played an enormous part in the leave victory. I remember giving out leaflets on the streets of the ward I represent on the county council in Wigton in Cumbria. People came up to me and said “Roger, you know, we’re not going to vote for you on this because we’re just wasting all that money”. I tried to explain to people that the £350 million that they were talking about was a gross figure of UK contributions to the EU, from which we got back substantial amounts of money which went to Cumbria in a big way.

Let me cite some examples. There is not just the agricultural support, which I know is a great concern of the noble Lord, Lord Cavendish. We would not have broadband in Cumbria if we had not had special EU support for it. We would not have had the regeneration schemes for the ports of Maryport, Whitehaven and Barrow if we had not had EU structural funds. We have had huge support for regeneration.

One other interest that I should declare is that I chair Lancaster University, just outside my native county, which is presently building a health innovation campus that would not happen without EU structural funds—and this for an excellent university, which is top of the league in the Sunday Times this year, if I can plug it in the Lords Chamber. It is a vital investment for the university’s future.

The truth is that, if the £350 million claim that the leavers made was to be met, all that spending would have to be scrapped—all the spending on agriculture and the regions and all the spending on culture, science and innovation would go, because that was the gross contribution. Clearly, therefore, there is great embarrassment on the Benches opposite as to their present intentions, because they cannot tell the Foreign Secretary that he was lying throughout the campaign. But the truth is that that was what he was doing. He was lying about the £350 million. The fact is that, if these programmes, the agriculture support and structural fund money is to continue, there is no £350 million. There might be a lesser sum from the net contribution, but when you are thinking about the net contribution, you have to think about the impact of Brexit on our economic growth and therefore on tax revenues. It is already the case that, whereas we were growing before the referendum at the top of the G7 league, we are now growing at the bottom of it, and the Chancellor’s own forecasts for the next five years suggest that we will continue to be in that position and will suffer a considerable loss of potential growth and tax revenue.

This is a very serious issue. I would like clear answers from the Government as to what promises beyond 2020 they are prepared to make on agriculture and structural funds. That matters greatly to the future of the regions of this nation.

Photo of Lord Adonis Lord Adonis Labour

I endorse everything that my noble friend Lord Liddle has said. Always when the House debates a Bill at length, certain themes appear, and the themes and patterns can often be of some significance. One of the most significant themes that has appeared in your Lordships’ consideration of this Bill is how weak the voice of England has been in our debates compared with the voice of Scotland, Wales and Northern Ireland.

There has been only one substantive debate about the interests of England after EU withdrawal and how it is handled, which was the debate initiated by the noble Lord, Lord Shipley—significantly, a former leader of Newcastle City Council—on 19 March. It was a very significant debate in the form that it took. What came through very clearly in the debate was that the noble Lord, Lord Shipley, and other leaders of local authorities in England, including the noble Lord, Lord Porter, who sits on the Conservative Benches and is the leader of the Local Government Association, had far more confidence in the EU’s processes of consultation through the Committee of the Regions than they did in any institutional arrangements for consultation between Her Majesty’s Government and local authorities in England.

I am delighted to see the noble Lord, Lord Bourne, in his place—I think that he may be responding to this debate. In his characteristic way, he made a very constructive response to the debate, saying that the Government were considering consultation arrangements post-EU withdrawal with local authorities in England. I took it to be a very significant statement when he said that that might involve new consultative machinery, including possibly a new consultative body between the Government and local authorities in England. I have to say that the fact that it takes EU withdrawal for Her Majesty’s Government to produce proposals for formal institutional consultation between the leaders of local authorities in England and the Government is a pretty damning commentary on the state of our constitutional arrangements in this country. One of the themes that comes through very strongly from Brexit is that English local government and the regions and cities of England are essentially government from London in a colonial fashion, in much the same way as Scotland and Wales were before devolution. One of the very big issues raised by Brexit is that whatever happens over the next year, whether or not we leave—and I hope we do not—Parliament is going to have to address with great seriousness in the coming years the government of England as a nation but also the relationship between this colonial-style government that we have in Westminster and Whitehall and local government across England as a whole.

The one telling exception to this pattern is London, because London has a directly elected mayor and the Greater London Authority. As a former Minister, I know that the whole way that London is treated is radically different from the way that the rest of England is treated because it has a mayor and the GLA. When the Mayor of London phones Ministers, sitting there with 1 million votes—somewhat more than my noble friend has as the county councillor for Wigton; I know he has done very well but he does not sit there with quite so many votes—I assure noble Lords that Ministers take the Mayor of London’s call.

I remember vividly that when I was Secretary of State for Transport I met the then Mayor of London, who is now the Foreign Secretary, and he did not know who the leader of Birmingham City Council was. It only happens to be the second largest city in England. That is a very telling commentary on the state of the government of England. How England is going to be treated is massive unfinished business in our constitutional arrangements, and Brexit has exposed a whole set of issues relating to the government of England that will now have to be addressed.

Photo of Lord Cavendish of Furness Lord Cavendish of Furness Conservative

The noble Lord is making an important point about devolution, with most of which I agree. Does he accept that this Government have really gone out of their way to try to devolve power and that in many cases, as I think he would accept, it is the people on the ground who have refused and rejected it?

Photo of Lord Adonis Lord Adonis Labour

My Lords, I am not seeking to make party-political points in this debate; this issue is going to embrace us on all sides of the House. I note, though, that at the moment we still do not have proper arrangements in place for what is going to happen over the mayoralties in the great county of Yorkshire, which is a hugely important set of issues. There is massive disagreement taking place between different cities in Yorkshire and the Government about how this should be handled. At the moment we still do not have strong powers for any of the mayors outside London. The treatment of the counties of England that are not going to be embraced by the new city mayors is very problematic in the current arrangements, partly because it is genuinely problematic. We have never been able to resolve the issue about how you devolve to local government in England outside the major cities.

This is going to be a big ongoing source of debate, and rightly so. As these debates have demonstrated, we have done much better by Scotland and Wales in recent years, not least because they now have their own devolved Parliament and Assembly. We have done our very best to ensure consensual power-sharing government in Northern Ireland although, to our great regret, the Assembly is not sitting at the moment. Before long we are going to have to start giving equal attention to the government of England.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I hope my noble friend Lord Adonis will forgive another Scottish voice, but I completely agree with every word that he has just said. Is not one of the ironies that our asymmetric devolution, which is the problem, is something that we could be tackling now with legislation in this Parliament if we were not preoccupied with this futile Bill and the other eight Bills that are going to follow it, which are totally unnecessary? We would have the time to deal with it.

Photo of Lord Adonis Lord Adonis Labour 1:00 pm, 28th March 2018

I entirely agree with my noble friend; he is completely right. However, it is rather a sad commentary on our politics at the moment that we in this House need to be frank and accept that, but for Brexit, a lot of these issues would not have been flushed out. I do not think that, but for Brexit and the Brexit referendum, we would be addressing them.

At the moment, I am spending a lot of time travelling around the country, particularly places which voted to leave. Most of these places are remote from London. There is an almost direct relationship between the distance from London, particularly the time it takes by train to get to places, and their likelihood of having voted to leave the European Union. What comes through so powerfully from the people I am meeting there is a massive sense of isolation and alienation not just from Brussels, although that is an issue, but from London and our Government and Parliament here. That is not a stable state of affairs for the future of government and democracy in this country, and it will have to be addressed.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I completely agree. I feel so frustrated because for the past three years, I have been trying to persuade the leader of our party to consider a constitutional convention or to discuss the issue even within our party. I agree that we need to come back to that, but I turn to the amendment in the name of my noble friend Lord Wigley. I call him my noble friend because, especially on this Bill, we agree on so much. I am grateful to him for tabling it. Although it applies to Wales, as others have said, it could apply equally to England and Scotland.

As others have also said, I am pleased that it is the noble Lord, Lord Bourne, who will reply to the debate, because I have had dealings with him, as he will testify, on a number of occasions both before he was a Minister and since, and he looks at these things carefully, seriously and sympathetically. I expect that he will do the same again today.

I will not go through the whole list, but in Scotland we will lose structural funds, scientific grants and the Social Fund, and the Erasmus funding is in doubt. There is the European Investment Bank, which has funded roads, railways, hospitals and many other things. None of this can be continued when we leave—if we leave: the noble Baroness, Lady Humphreys, is absolutely right. I should always use the phrase “if we leave”, because it has not yet been finally decided, we are going through a process. It was the noble Lord, Lord Roberts, who said it, not the noble Baroness, Lady Humphreys. I am getting completely mixed up. As we go through the process, we are seeing more and more problems that will be created by Brexit.

I do not know whether any of your Lordships have visited the Falkirk Wheel, now one of the great tourist attractions in Scotland but also one of the great engineering attractions. Again, it was partly funded by the European Union. The Scottish Parliament estimates that more than 40,000 jobs have been created with European funding. As I said, I do not want to list them all—I could go on at length if that were appropriate, but I will not.

We have had vague promises that funding will be continued if we leave the European Union. We need, if not today then in the near future, more detail, more specifics. We need to know exactly what kind of funding there will be. Will each of the funds lost be replaced? What will replace the common agricultural policy? What will replace the regional development fund? What will replace the scientific grants? What will replace the Social Fund? It needs to be more specific. It is exactly like the immigration arrangements, which get put off, put off and put off. We have been promised them again and again but they have not been published. We do not even have a White Paper, let alone a Bill.

People need to know. If, as I hope, we will have a final say, if the British people will be given a final say, they will need to know whether these funds are to be replaced, how they are to be replaced and whether they will be replaced pound for pound, pound for euro, or whatever is appropriate. I hope the Minister will give such an assurance.

It is also ironic, as I said earlier when I was having an exchange with my noble friend, Lord Adonis, that we are wasting a lot of time in this debate.

Hear, hear.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Thank you very much. There was a huge measure of support there, principally from the Cross Benches. I do not think I have done anything to offend the Cross Benchers; quite the reverse, I was keeping them amused earlier on.

However, this is a serious point. Not only are we taking a lot of time dealing with the Bill, including Wednesday mornings, but we are spending a lot of money. My honourable friend in another place, Stephen Doughty, got an Answer recently that stated that £395 million has been transferred to the Home Office just for dealing with Brexit. Just the process is taking up a lot of money. In fact, we ought to have more Questions and Answers about exactly how much is being taken up by the actual physical process of dealing with this, including civil servants and travel. I understand that Mr David Davis does not like to travel by Eurostar so takes charter flights to Brussels, so the costs are mounting day by day and week by week.

My last point is more general. We now know that the leave campaign has been guilty of fraud and continues to be under investigation by the Electoral Commission. We now know that money was transferred illegally from the leave campaign to the BeLeave organisation, and that unfortunately some of my colleagues and former colleagues in the Labour Party were involved in that because one of them, a former MP, was a director of the Leave campaign. I think it is particularly reprehensible that she was involved in that.

That brings me back to the point made not by the noble Baroness, Lady Humphreys, but by the noble Lord, Lord Roberts, about if Brexit goes through. People are becoming increasingly disillusioned by the way in which we were duped during the referendum campaign, and that strengthens the case for having a new look—

Photo of Lord Cavendish of Furness Lord Cavendish of Furness Conservative

The noble Lord will remember from an earlier debate that it seems that Euratom was understood in detail in Yorkshire by not tens or hundreds but thousands of people. I think people were probably not duped.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

That is a matter of opinion. More and more research is being done, including recently by an organisation whose exact name I am trying to remember which carried out some work, about which I had an email this morning, showing that people who voted leave did so for a whole variety of reasons, unconnected in some cases to the whole question of the EU. That is one of the problems of referenda generally, as we have discussed before. Still, as we discussed earlier, if the decision was made by the British people, there is a very strong argument that it needs to be undone by the British people. We need to look at that again as the arguments become even stronger.

To return to the amendment, I hope we will get some specific promises and details from the Minister. As I said when I started, he has been known for his credibility, sincerity and honesty. I hope we will see that again today.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I have a specific question for the Minister: do the Government accept the proposition, put forward so clearly by the noble Lord, Lord Wigley, in introducing the amendment, that they are bound by the promises made by the leave campaign? They say, “It is the voice of the people that we are following”. The Government had a number of choices that they could have made, but in fact they have chosen to follow a model that must bring great delight to the most extreme Brexiteers. If they do that, they are bound by those promises, I submit—I accept what the noble Lord, Lord Wigley, said.

It is suggested—this is the weak and feeble argument put forward by the leave people these days—that it did not make any difference, and that what they said really had no impact whatever. Before the people spoke and before we heard the voice of the people, the people listened. And what did they listen to? They listened to a universal lie about the National Health Service, that it would receive £350 million a week. The noble Lord, Lord Liddle, has referred to this as “lying”, but I prefer the word “cheating”, which has been used elsewhere in this building this week. The campaign, we now learn, was prepared to send out contradictory messages to targeted people. We do not know what those messages were and we do not know who the people targeted were, but that was cheating. So when the people spoke, they had listened to the lying and cheating propaganda that had been put forward.

Let me be more specific about Wales, where specific promises were made. Wales has been the net recipient of £650 million a year from European funds. That is not something to be proud of; it is because Europe recognised the needs of Wales, and gave money in structural funds and agricultural support that addressed those needs. I will not enumerate precisely what they are, because my noble friend Lady Humphreys has already covered that ground quite fully.

There is a moral imperative about this Government: if they are going to campaign for the sort of Brexit that the most extreme Brexiteers want, they should fulfil those promises, and make it clear in the report that the amendment calls for. In Wales it was said by leave campaigners, in terms, “You will not lose a penny”; that was said widely, across Wales, in all the campaigning that took place.

Photo of Lord Cavendish of Furness Lord Cavendish of Furness Conservative

By whom were these promises made? One problem about a referendum, the principle of which so many of us disagree with, is that it is not a case of a Government making promises that they then have to honour. I do not remember being told about not receiving a penny less. Also, I think that the noble Lord might desist from the extraordinary use of the word “extreme” Brexiteer. You cannot be 52% in the European Union; you are either in or out under this absurd and very unpleasant system of a referendum.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

I have the greatest respect for the work that the noble Lord does in Cumbria. Indeed, I feel very much for Cumbria and the north of England for the problems that they have, but they did not have made to them the specific promises that campaigners in Wales made. The Government have picked up the mantle, however you look at it, of the leave campaign. As I have said, they had choices. They could have stayed within the single market and campaigned for the customs union, but have chosen not to. That is why I wholly support the amendment proposed by the noble Lord, Lord Wigley.

Photo of Lord Griffiths of Burry Port Lord Griffiths of Burry Port Opposition Whip (Lords), Shadow Spokesperson (Digital, Culture, Media and Sport), Shadow Spokesperson (Wales) 1:15 pm, 28th March 2018

My Lords, my noble friend Lord Foulkes described this as a futile Bill. He may be right, but it is the Bill that we are discussing. Similarly, many quite prolix arguments have been made about a number of matters that are of great importance but are not directly a consequence of the amendment before us. If we look at that, we might need to do so in a particularly poignant way.

First, I commend the terrier-like activity and concerns of the noble Lord, Lord Wigley, who has worried away at this subject like a dog with a bone over 11 days —it astonishes me that there is still some marrow in the bones, but it has been necessary. Others have talked with regret about the fact that other parts of the United Kingdom have not received the same attention that Wales, Scotland and Northern Ireland have. We can all regret that, but we can see exactly why they have received more attention, because the Bill as drafted dealt with the devolved Governments’ established institutions in a way that many people in authority felt was not fair, or just, or constitutional or whatever. Consequently, we needed to deal with the irregularities that the Bill generated in respect of these institutions, and that is what we have spent quite a lot of time doing.

I look at what has happened in Wales since 1997 and recognise the building of confidence in the institutions that now govern the Principality. I see the three different ways in which powers were gradually passed over to the Assembly: first, in a hand-me-down sort of way from this Parliament; secondly, by statutory instrument; and, finally, only very recently, through primary legislation-making powers.

I am delighted to see the noble Lord, Lord Bourne, across the Chamber, given the constructive part he played, as the leader of the Conservatives in Wales at that time, in bringing about the referendum and the agreed settlement that gave us the Assembly as it is. Let there be no doubt about it, the Assembly in Wales began in a situation of chaos—with a plain piece of paper on which many potential plans and outlines were scribbled as the various parties for power struggled between themselves to find the right shape.

At the minute, I am dealing with the family of the late Lord Richard of Ammanford, because I will be officiating at his funeral. As I look at his life, the interesting thing to note is the part played by the Richard commission, which put before the people of Wales a number of steps, just about all of which have now been incorporated into legislation which I believe will soon come into being and will govern affairs henceforward—a posthumous tribute to him. The important thing was that it commanded the confidence of all parties in Wales. Those who have typified the contribution of the Welsh voice to this debate as being merely a mouthpiece for Labour in Wales are wide of the mark. The widespread support for the institutions is acknowledged—and the part played in that by the noble Lord, Lord Bourne, has to be recognised.

Here we are on the 11th day of Committee, but this is not the end of it—for goodness sake, there is a lot of entertainment yet to come. Where else would I get the kind of discussion that we have enjoyed about the Queen’s printer? Was it dot matrix or what? Because Her Majesty likes Tupperware, perhaps she likes old-fashioned ways of printing—I do not know, but it was a very illuminating and enlightening debate. We have had esoteric and philosophical principles adduced, constitutional and political positions established and fought for, and all the rest of it. At the end of the day, is it not wonderful that, with all these things in the ether—all this magnificence of idea and thought—it is money that constitutes the core of the amendment before us? We heard reference earlier in the debate to the practical arrangements that we need to face—well nothing is more practical than money.

Wales can legitimately point to the difference between the kind of economic activity that it was able to enjoy and take forward while administered, as it were, from Westminster and the kind of support that it has received subsequently because of membership of the European Union. We should hear from our debate the plea to distinguish between the infelicities of a Barnett formula which applied crudely to Wales and what will happen if it is applied crudely to Wales after we come out of Europe—if we come out of Europe. It will lead once again to a cap-in-hand approach from Wales to its financial masters here in London.

“Needs based” has been a tectonic plate, it has been a quantum leap to go from the Barnett formula to that. The needs of some of the run-down and rural areas in Wales are very desperate indeed. So I hope that we have heard, through all that has been said, the need for us to look again at the principle of how to financially support this institution.

The word “consent” was used earlier and was disputed greatly. Consenting adults is a concept that I am very familiar with. I would have hoped that instead of consent being interpreted, as it has been, as requiring a level of support that cannot be given for legal and other reasons, we would remember that consent between consenting adults is reciprocal. I do not want to think that the devolved Governments are holding a gun—a veto power—to the head of the United Kingdom Government. But Wales feels that, in the way the Bill is drafted, that is exactly what the United Kingdom Government are doing to Wales: holding a potential veto to its plans, which in certain circumstances they might use.

It all drives us back to that one word which the noble Baroness, Lady Bowles of Berkhamsted, mentioned this morning: trust. There has to be trust. How we rejoiced at the possibility that framework arrangements—the list of 24 has been referred to in previous debates—might be written into a schedule to the Bill, as amended, so as to give confidence to the people in Wales that there is a shape going forward. Some sort of consent to that list could indicate all that is necessary for us moving together as partners. The Government in Wales do not need to be treated in an infantile manner in these matters. Trust is possible, and in my opinion it is necessary.

We can read for ourselves all the details in Hansard, but this amendment has put out the case. Once we are through this process and into the legal situation that we will arrive at, on the shores of Canaan, having have crossed the river Jordan—

Oh!

Photo of Lord Griffiths of Burry Port Lord Griffiths of Burry Port Opposition Whip (Lords), Shadow Spokesperson (Digital, Culture, Media and Sport), Shadow Spokesperson (Wales)

I was hoping that that was an intervention—I am better prepared for interventions than I was last time.

I simply hope that, when all is said and done, the fact that this is about money—even if the guarantees and figures cannot be given in a debate such as this—will indicate the desperate need felt in Wales for some support and encouragement. There must be a promissory note for adequate support that will be met once we are no longer in Europe for the activities that up to now Europe has helped us with so generously.

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Housing, Communities and Local Government)

My Lords, I thank the noble Lord, Lord Wigley, for tabling these amendments and all who have participated in what has been a free-wheeling, free-ranging debate covering an awful lot of important areas, some which I perhaps in all fairness could not have anticipated when I read the amendments.

The noble Lord, Lord Griffiths of Burry Port, is absolutely right that in debating something geared specifically to Wales we should recognise the enormous contributions made by Lord Richard and Lord Crickhowell, both of whom sadly died recently. Sometimes in similar ways but in differing ways in other respects, both made enormous contributions in Wales and to devolution. Lord Richard is certainly massively missed. He made an outstanding contribution on the Richard commission in relation to devolution but in so many other ways in public life as well.

I will first turn to the amendments and then try to do justice to the many wide-ranging points made during the debate. The noble Lord, Lord Wigley, was described as “terrier-like” and as getting the last bit of marrow out of the bone. As someone who has often broken bread with him, I thought that conjured up an extraordinary vision of him. For many years, he has certainly fought hard for many issues in public life, not least for Welsh principles and rights, both here, in the Commons and in the National Assembly for Wales. I think that is acknowledged across the political divide and by people with no politics at all. He continues to make an extraordinary contribution.

The amendments would require the United Kingdom Government to produce a report outlining how EU funding provided to Wales will be replaced once we leave the EU. They would mean that the entire Bill could not be brought into force pending the publication of such a report.

While I understand the desire for as much clarity as possible—I shall say something about cohesion funding shortly—I do not consider such a step necessary in view of the considerable funding assurances the Government have already made to all parts of the United Kingdom. I recognise that there is an issue here that goes broader than Wales. There are certainly issues relating to Cumbria, as has been mentioned during the debate, Cornwall, Merseyside, Scotland and so on—this affects many parts of the United Kingdom, although the amendments are for understandable reasons addressed to the needs of Wales, which I can strongly identify with.

The agreed implementation period to the end of 2020 will see the UK participate in 2014 to 2020 EU funding programmes until their closure. In the case of some of those projects, that will mean the end of 2023. It will not be beyond 2023, but it could mean funding for those programmes that remain open during that funding programme until the end of 2023. The projects would receive their full allocation of EU funding during that period—that is an agreed position as things stand.

This approach ensures that projects are not disrupted and no community misses out. The noble Baroness, Lady Humphreys, was there at the start of the Assembly as were the noble Lord, Lord Wigley and I, and saw the benefit of such funding—I fully recognise many of the examples that she gave. In the area that I represented in west Wales, there were massive benefits. No community would miss out. British businesses and potential investors have certainty and stability up to the end of projects running to 2023.

In the longer term, the Government have further committed to maintain cash farm funding until the end of this Parliament, taking us beyond 2020, which provides the sector with more certainty than in any other part of the EU as things stand. The Government will also create a UK shared prosperity fund to reduce inequalities between communities across the United Kingdom and deliver sustainable, inclusive growth. The Government intend to consult on the design of this United Kingdom-wide fund during 2018. That will of course, quite rightly, mean engagement with the Welsh Assembly through the Welsh Government and, similarly, the Scottish Parliament through the Scottish Government and with others who would expect to be consulted in that process.

Photo of Lord Liddle Lord Liddle Labour 1:30 pm, 28th March 2018

Can the Minister tell us anything about the timing of consultation papers on the shared prosperity fund? When are they likely to appear? Particularly in relation to the debate on Brexit, are we likely to see what is proposed before the final decisions that we have to make at the end of this year?

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Housing, Communities and Local Government)

The noble Lord makes a fair point. I do not know the specific answer, but I will cover it in a letter to all Peers who have participated in the debate on these amendments, and place a copy in the Library.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

Perhaps the Minister can answer this question. Is the UK prosperity fund—which I think was in the last Conservative manifesto—intended to be administered or distributed on the basis of need or a population count?

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Housing, Communities and Local Government)

My Lords, it certainly was in our last manifesto. As I have just indicated, it talks about reducing inequalities, so the noble Lord has that comfort. Again, I will ensure that any points not dealt with in my answers will be covered in a letter to all Peers who have participated on these amendments, a copy of which will be placed in the Library.

The noble Lord, Lord Wigley, made some points about cohesion funding, which dates back to 2000. I remember when the noble Lord was leader of the opposition in the Assembly and I was leader of the Welsh Conservatives—I later became leader of the opposition. I too went out to Europe and fought for this with Michel Barnier. I also remember the struggles that we had with the Treasury; that was accurately reflected. I agree with the noble Lord, Lord Thomas, on this point, which the noble Lord, Lord Wigley, made in the Assembly on many occasions. Such funding was not a badge of pride: it was coming to Wales because of the poverty that was experienced in west Wales and the valleys. It was not limited to Wales: Cornwall, Merseyside and so on were also involved. This was something that we did not really want to qualify for. There will be another round of funding from 2021 to 2027 and I will look at how that pans out. It is not guaranteed, even in European terms, that Wales will qualify. We were somewhat surprised in the last round of funding—it was very marginal—that Wales just managed to qualify. In one sense we were pleased, because to just qualify rather than just miss was welcome. We have to remember that there is no automatic right to it. It is based on 75% of average prosperity throughout the European Union.

There were some free-ranging points made about the referendum campaign—I remember the campaign in Wales as a campaigner for remain—but I will focus on the parts of the debate that were more central to the amendment and the legislation. First, however, I will touch on some of the funding that is coming to Wales. As a Welsh Office Minister, I know that we are participating very much in mid-Wales growth deals, north Wales growth deals and city deals. Stuff is going on which is helping projects in Wales now and engaging with the NFU, the FUW, the CLA and so on. Many things are happening in Wales that I am sure noble Lords across the Chamber would be pleased about.

Points were made about the Barnett formula. Lord Richard would have had much to say on this and we come back to it on many occasions. However, the issue exists independently of Europe and it is not made better or worse by our position in Europe. It does need addressing. In fairness, as part of the coalition in the previous Parliament, we ensured that the formula was ameliorated by the application of the Barnett floor, which benefited Wales. That said, I recognise the points about the historic position of Wales, unlike Scotland which benefits from the Barnett formula. I will leave that for another day, if I may.

The noble Baroness, Lady Humphreys, was there at the start and very much engaged with ensuring that we got the benefits of Objective 1 into Wales. In parenthesis, the giving of taxation powers to Wales, which was part of the coalition Government and the Silk commission and is now in process, should help to incentivise growth in Wales and is part of the added powers that have been given to the National Assembly for Wales. We should not fail to recognise that a lot of these issues are things that the National Assembly now can, and I have no doubt will, ameliorate.

The noble Lord, Lord Roberts, made a valid point about Welsh agriculture being much dependent on agricultural funding. I hope he takes comfort about what I have said about the agricultural budget up to the end of the Parliament. He is right that we have to focus on it. In fairness, it is not just a Welsh issue but, as he rightly recognises, it is central to a lot of Welsh life and many areas and close to the hearts of people in Wales.

The noble Lord, Lord Liddle mentioned the Cumbrian situation and touched on federal issues. I can promise that just as I would take a call from Sadiq Khan, I would take a call from the noble Lord. If he wants to ring on any issues, I would be very keen to do that. I think Wigton is extremely important.

The noble Lord, Lord Adonis, referred appositely and correctly to the weak voice of England in our structures. I think that the noble Lord, Lord Foulkes, by inference touched on the incomplete part of the jigsaw in that we do not have regional voices for England, or not in the same way that exist in Scotland, Northern Ireland and Wales.

I perhaps take issue with the noble Lord, Lord Adonis, about the unknown mayor of Birmingham. I think that would be a surprise to many people. Many people know that it is Andy Street, just as we all know Andy Burnham. I do not think it would be quite right to refer to them as colonial governors, either.

Photo of Lord Adonis Lord Adonis Labour

My Lords, I was referring to the then Leader of Birmingham City Council who is now also a Member of your Lordships’ House.

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Wales, Parliamentary Under-Secretary (Housing, Communities and Local Government)

And a very able one. I take that qualification and thank the noble Lord for it.

It is also worth saying that there were attempts to extend regional government to England. I am sure we all remember the referendum in the north-east, which was pretty decisive. I accept that there are issues to address there. This Government have done more for city mayors than has been done for a long time in terms of devolved power and not just in the big cities of the UK. We have looked at other areas—Cambridgeshire, for example. However, there is incomplete work—including in Yorkshire, it is fair to say.

I agree with the noble Lord, Lord Foulkes, that the Falkirk Wheel is well worth visiting. I also agreed with him on other issues that he mentioned in relation to the unaddressed issues about government in our country—some points well made.

I thank the noble Lord, Lord Thomas of Gresford, for his contribution and agree that we fought for money for Wales. It was not a matter of pride, it was a matter of getting money that was needed. I agree that in many ways the money is still needed because of the relative poverty in Wales—sometimes a poverty that is not obvious. The grinding poverty that exists in the Valleys is obvious, but the poverty in the rural communities of north-west and south-west Wales is not necessarily as obvious.

I thank the noble Lord, Lord Griffiths of Burry Port, for his contribution and for re-focusing us on some of the issues that matter. He referred to the history of some of the devolution process in Wales—the 1997 referendum, the 2011 referendum and much work that was done in-between. He is right that there is a money issue. I do not think it is just a money issue; it is also an attitude issue that has existed prior to this Government and probably the previous Government. In short, I think it is ameliorated. There is an attitude of: “Let’s not forget Wales, let’s not forget Scotland”. It has become lot better; it is plugged in. That is not to say that we are there yet. It is not just a money issue, though money is important too.

The noble Lord mentioned the Barnett formula. A lot of good work has been done in the past by Gerry Holtham and the Holtham commission, but there are issues which remain to be addressed—that is no doubt true. He went on to talk about the consenting process, and I take it that he means the process referred to in Clause 11. I agree that this is a partnership and, in fairness, the Prime Minister is very much aware of that. She met the First Ministers of Wales and Scotland very recently, and I think progress was made. More work needs to be done and is being done. We are not there yet. I think that anyone who is fair minded would acknowledge that we have made considerable progress on this but, as I say, we are not there yet.

I appreciate that the noble Lord, Lord Wigley, may regard this as half a loaf—it is not everything he wants—but I am happy to talk to him between now and Report and to find answers to some of the questions put by the noble Lord, Lord Liddle, about the timing of this process. I hope that helps the noble Lord: I thank him for bringing this important issue to the House. I thank other noble Lords for their part in this. While the present team and I remain at the Wales Office, we are determined to ensure that Wales gets a fair deal. I am sure that applies to the Scottish and Northern Ireland teams in relation to Scotland and Northern Ireland. We have to ensure that all parts of the United Kingdom are taken care of in this. We do not want this to be x versus y: everybody has to be fairly dealt with. On the basis that I am happy to try to find more information for the noble Lord, Lord Wigley, and others, I hope that the noble Lord will withdraw his amendment.

Photo of Lord Wigley Lord Wigley Plaid Cymru

I am very grateful to all noble Lords who have taken part in this debate, which was rather longer than I expected. Perhaps I set the wrong precedent in my own speech. I thank the noble Lords, Lord Liddle, Lord Roberts of Llandudno, Lord Adonis, the noble Baroness, Lady Humphreys, of course, as well as the noble Lords, Lord Foulkes, Lord Thomas of Gresford and Lord Griffiths of Burry Port, and the Minister, for their comments. I am grateful for the acknowledgment of the importance of the issue. In response to the noble Lord, Lord Cavendish, whose interventions I followed with interest, I recognise, as we all do, that other parts of the UK have specific needs which should be addressed as well. We need a mechanism to do that. In the context of the current round of European funding, on top of the CAP, there is a particular impact on Wales, which was what I wanted to highlight.

I suggest to the noble Lord, Lord Bourne, that, in the fullness of time and having thought a bit more about this and discussed it with his colleagues, the Government might be minded to bring forward a White Paper, or a publication of some sort, laying out how funding coming from Europe will be replaced. This would not be just for Wales but for other areas as well, and not just for the period from now until 2019 or 2021—whichever is the end of the transition period—but their ongoing intention after that. As the noble Lord, Lord Foulkes, said, the timing is important. I identify with the comments made about the late Lord Richard and the late Lord Crickhowell who, in their different ways, both made considerable contributions to Wales. I am sure that, if they were here today, they would be taking an active interest in these issues.

The noble Lord, Lord Bourne, knows enough about the feelings in the National Assembly about European funding to realise that this is a real issue that can make a difference, not just a political football. We can certainly argue about how the money is used and how it is used in Merseyside, south Yorkshire or Cornwall, where it is used in different ways, sometimes with better results. We need the resources because we are not going to get them elsewhere. They have to be replicated somehow. The question of trust has arisen in a number of contributions. Before the noble Lord, Lord Bourne, entered the Chamber there was another issue regarding money from the Treasury—the aggregated capital funding that Wales was accumulating in the National Assembly to avoid the wastage of year-end expenditure and put it into capital projects. That money was taken back by the Treasury on the basis that we had no right to aggregate money from other headings to fund capital projects. That is the sort of breakdown of trust that we are talking about, and we have to make sure that those attitudes are not exemplified in the ongoing period.

I hope that over the coming two or three weeks it will be possible to see whether a different formulation of this amendment can be tabled on Report, bringing in other parts of the United Kingdom and perhaps other parties. I invite the Front Benches of the various parties and individuals on the Cross Benches to consider whether that may be possible, and to do so with the positive intention of achieving a meaningful step forward as a result of the debates here that will help Wales and all other parts of the United Kingdom to find a way through the consequences of leaving the European Union. On that basis, I beg leave to withdraw the amendment.

Amendment 355A withdrawn.

House resumed.

Sitting suspended.