Moved on Tuesday
That the Bill be now read a second time.
At end to insert “but that this House regrets that the bill makes no provision for the opinion of the people to be secured on the terms on which Her Majesty’s Government propose that the United Kingdom withdraw from the European Union”.
Relevant document: 9th Report from the Constitution Committee
My Lords, I begin today’s debate following on from my noble friend Lady Morris of Bolton. I agree with her that we must push ahead with this Bill and give it a Second Reading. Preserving existing EU law as it currently applies to the UK is essential in providing continuity and legal certainty on the day of, and in the days after, exit. This does not mean that I am totally without concerns about the Bill as it currently stands, but it will be up to noble Lords to engage in discussions in Committee and during the following stages of the Bill.
I am grateful to my noble friend the Leader of the House for restating the Government’s proposal to create a sifting committee or committees. Perhaps in winding up the debate the Minister will be able to update us on this matter. Could he also give us more details as to the timetable envisaged, because I believe that we have a very tight timetable, not only for primary legislation but for the handling of negative instruments and for the necessary robust scrutiny by the various committees? Is the Minister able to tell us exactly what proportion of the 800-plus—some say 1,000-plus—statutory instruments that it will be necessary to lay will follow the negative procedure and how many might follow the affirmative procedure? I am not clear on that point. Can he also comment on the safeguards that will ensure that these are made by the dates laid down in law?
My concerns with this Bill fall mainly in three parts: first, the role of Parliament and the Henry VIII powers in the Bill as it currently stands; secondly, devolution; and, thirdly, the timetable for and the importance of proper scrutiny. My noble friend Lord Hill described the Bill as boring, but I do not agree. For me, this is probably one of the most important Bills we shall be dealing with for a long time. It is an opportunity to ensure that we have the right—I was going to say “appropriate”, but after yesterday’s discussion on that word, I will say “right”—clauses and detail when the Bill leaves this House. My right honourable friend Iain Duncan Smith said that he supported the principle of the Bill and the need for it, but recognised that,
“in Committee there will be need to review how some of those checks and balances are introduced, and I hope that is done properly and powerfully”.—[
I can think of no better Chamber to do that, and I look forward to noble Lords taking part in it.
Many noble Lords know my interest in agriculture, the countryside and the environment. A high proportion of the necessary legislative changes fall within the agriculture and environment arena, for which Defra has responsibility. I particularly welcome the Government’s recognition of the importance of maintaining standards of animal welfare and for bringing forward the draft animal welfare and recognition of sentience Bill. I know too that there is to be a consultation on fishing and fish stocks. Crucially, this must directly consult with the devolved Administrations.
An agriculture Bill is proposed, as is the creation of a stand-alone, non-government statutory body to oversee, scrutinise and hold the Government to account. I do not share the gloom of the noble Baroness, Lady Miller of Chilthorne Domer, but I know that this new body needs to be robust if it is to succeed in protecting the environment for future generations. Yesterday, in his contribution the noble Lord, Lord Krebs, spoke about the need to preserve the things that affect us all: air quality, fresh water, habitats and tackling pollution. All of these are currently EU based, so it is crucial that this new body is in place in time before we exit the EU.
Many noble Lords have made excellent contributions to this debate, expressing many different views, but I hope all of us believe that we must move this Bill forward whatever our views are, whether we were for leaving or remaining within the EU. There is a great urgency in getting this Bill on the legislative path. Whatever our views, we must join together and make sure that this important Bill is on the statute book sooner rather than later.
My Lords, I agree with what the noble Lord, Lord Butler of Brockwell, said yesterday: this Bill is a dagger to my heart. I am overcome by three emotions. The first is a sense of shame, which I feel many Members in this House must share, that over decades our political leadership failed to make the case for Europe. The referendum should never have been called, and the leave vote should never have won.
The second is a personal sadness. I am proud to represent on Cumbria County Council a town called Wigton. Its most famous son is my noble friend Lord Bragg, who has just been awarded the companion of honour. Wigton voted strongly leave. I love my leave constituents—I really do. Yes, they voted to take back control. They are no fans of EU remoteness or bureaucracy, and nor am I. But their revolt was against an economy that is grossly out of balance, a world of work that no longer offers self-respect and a lack of opportunity that means that more than half their children leave their home area after school and never come back. Their grievances have, for too long, been allowed to fester. The seeds of anti-immigration populism were sown for the unscrupulous to exploit. Where now is the modern regional policy, the New Deal for the north and Midlands, the Marshall plan for the left behind that England needs? It is nowhere under this Government. They are suffocated by a pursuit of Brexit that can only make Wigton’s problems worse.
My third emotion is a determination that the bunch of scoundrels who propagated their Brexit lies are not going to get away with it. As a citizen and Labour activist, I will fight Brexit to the last. Yet as a Member of this House I understand our role. Yes, I will work for amendments to this Bill that soften the impact of Brexit, safeguard essential rights, weaken the extraordinary powers the Bill grants to the Executive to override the legislature, protect our devolution settlement and give Parliament a meaningful vote on no deal as well as any deal.
But does this response to a highly technical Bill measure up to the scale of events and our constitutional responsibilities? This clueless Government are pursuing a “I haven’t got a clue” Brexit. The only basis on which the Prime Minister can unite her party is pursuing a Brexit that knows not where it leads. In December, to keep the Irish quiet, the Prime Minister signed up to full alignment. Last week, to hang on to her job, she attacked her Chancellor for having the temerity to suggest that Brexit would lead only to very modest changes. In Brussels, the Prime Minister pleads with our EU partners for a deep and special partnership. Back home, she assures the Brexiteers it will be deep only for as long as they want it to be, and Britain will have the freedom to diverge whenever it wants—in Michael Gove’s case, probably before the ink is dry on the treaty. Is it deep and special? I call it shallow and perfidious, and as a negotiating strategy it is a totally unrealistic fantasy.
What has been striking about this debate so far is the lack of any positive vision for Brexit. How can Britain proceed with the most momentous decision on its future since the Second World War when no one is seemingly capable of explaining what our Brexit future will be? “Ah,” people say, “the people have decided, and the will of the people must be obeyed”. This is, frankly, thin gruel. In a democracy, the public are entitled to change their mind, and the rest of Europe keeps telling us that Article 50 can be reversed at any time. The leave option that seemed so simple when people voted in June 2016 is now so complex, and the only question before us is how big the Brexit damage will be.
The job of Parliament is to challenge the vacuum into which at present the Government are leading us. How can we make a real difference? The first way is to press the Commons relentlessly to vote to stay in the single market and customs union—better to be a rule-taker of European laws that have a progressive European vocation at their heart than a theoretically sovereign rule-maker that in practice will be driven to use its new freedoms only to break free of decent European standards in pursuit of some deregulated mid-Atlantic tax haven. I say to Jacob Rees-Mogg that what he derides as a vassal state would be a failed state.
Secondly, if we cannot win the single market, let us help bring on the storm—which the noble Lord, Lord Patten, talked about in his brilliant speech—that could reverse Brexit by forcing a general election or another referendum. I agree so much with the noble Lord, Lord Higgins, in his magnificent defence of representative democracy, but if it comes to it and a referendum is the only way of reversing this historic mistake, we must accept it and, indeed, advocate it.
In conclusion, this brings me to Labour. Europe is in a category of its own in terms of its impact on future generations. It transcends any party manifesto or Whip, I say to my noble friend. I do not want to be a rebel; I want our party to lead, to seize this opportunity to demonstrate that, in contrast to this wretched Government, we can live up to our national responsibilities and our internationalist heritage. I say to my colleagues on these Benches: let us do our bit to make it happen.
My Lords, it is a pleasure to follow the powerful contribution of the noble Lord, Lord Liddle, every word of which I agree with. I fear that my contribution will be more like “Just a Minute”—there is no hesitation but definitely quite a lot of repetition and a certain amount of deviation.
I would like to believe the Government when they say that everything will be all right, everything will be transferred into UK law, the Government will maintain our environmental standards, I need not worry about the precautionary principle and it is not a problem if retained law is not quite the same. Of course, with the best of intentions all the EU directives that have kept us on the straight and narrow will still be underpinned. Of course, Ministers will not under any circumstances misuse statutory instruments. I would love to believe the Government. I almost believe that they have good intentions, but you know what they say: “The path to hell is paved with good intentions”. Good intentions are not adequate. The Government could give no assurances of good intentions that would satisfy me. The law, the face of the Bill, is the only place where doubts, concerns and worries can be laid to rest.
There is a governance gap in environmental standards. While the Government can say that standards will be maintained, where is the equivalent legal last resort to replace the force of the ECJ? Judicial review is not an answer. Fear of infraction concentrated ministerial minds on meeting legal obligations, but there is no enforcement in the Bill or even reporting obligations. We cannot and must not have a diminution of environmental rights. Without the protection of primary legislation, we cannot accept words alone. It is no wonder that so many Members of the other House expressed so much concern over the Bill giving Ministers the power to change primary legislation with a test that is as flimsy as whether Ministers think it appropriate. There has to be a legal test as to whether it is necessary, at the very least.
One of the key principles under EU law has been the precautionary principle, which forces those whose actions might harm the environment to prove in law to the contrary. The Bill rules this out. It also rules out the polluter pays principle. These are protections that have stood us in good stead. The precautionary principle and the polluter pays principle have kept us on the straight and narrow. They have forced us in the right direction, but they are explicitly ruled out in Schedule 1, so where are those protections to come from in future? The Government continually reiterate that there will be legal continuity, but that is not in fact the case. The Government must enshrine EU environmental principles in domestic law.
Alongside the principles, there is also a need to carry across provisions from EU directives that are not transposed into UK law. Some parts of EU law did not need transposition while we were a member state, but they need it now. We have to have the ability—nay, we have the obligation—to put right any deficiency in terms of failure to transpose EU law: it must be a duty and not simply a power. If Brexit comes to pass—and I still hang on to my “if”—we must be sure that laws that are currently EU regulations and laws that implement EU directives are transposed into UK law with the same force and intent as when we were a member state. On Report in the other place, there was cross-party support for new Clause 13 on the certainty of retained EU law.
The Government are trying to assuage the many concerns that we have in this regard by proposing that each measure will be dealt with on a case-by-case basis. That gives no comfort to those of us who suspect that the Government wish to find a way of moving away from these strictures. As energy and climate change spokesperson, I have huge concerns about a whole range of threats in that regard related to our departure from the EU.
I want to touch on our membership of the internal energy market. If we continue to participate—and of course we must—we will be obliged to comply with the relevant EU legislation. We need to continue to be as influential over EU energy post Brexit if we are to ensure that energy trading works to the benefit of UK consumers. The Government claim that they want to hold consumer energy bills down, so this is vital. Unless we adopt the energy acquis, we will not be able to maintain membership of the relevant bodies. Without proper management, this could lead to higher energy prices and energy supply shortages.
There is still no certainty about our continued membership of the internal energy market. If we leave it, what will happen if we have a gas security incident? Currently, there is an obligation on all members to meet the essential energy needs of any member state before the non-essential needs of their own. That is there to prevent a country from having a total power failure. If we leave the energy market and we have an issue with our gas supply, member states will no longer have an obligation to help us. We will be at the back of the queue and I do not think that Europe will be very kind to us.
Equally, with interconnectors, we could, if things get bad, be unable to export gas to the continent. Northern Ireland and Ireland have a single energy market and have interconnectors between them and the UK mainland. As Ireland will remain a member of the energy market and will obviously want to go on trading energy with mainland Europe, it will have to pass through the UK, a non-member.
There is no economic upside to Brexit in the case of energy—or actually anything—only possible downsides, and the positive pan-European climate efforts about which we have all been so enthusiastic and which are so necessary to our commitments to the Paris Agreement and our own Climate Change Act may be undermined.
My Lords, I admit at the outset that the referendum result was a very bad, sad day for me, but that is democracy for you and I am not reneging on it. I wrote an article during the campaign for a national newspaper urging my side of the argument to campaign with greater passion and vigour, but it had little effect and we lost. It is not the first time that I have been on the losing side.
So I am all the more bemused now to find that it is the winning side that is blowing a fuse because of the confusion that its victory has created—confusion inside government, in industry and commerce, in the City of London, in the European Union and across the wider world. I do not recall a comparable crisis of such prolonged intensity and danger to the national interest and the country’s future as a United Kingdom.
Regardless of how we voted in the referendum or what we think of the Government’s squabbling factions now, the duty of your Lordships’ House is very clear. That, I submit, is to assert our rights to scrutinise, amend and, if needs be, to reject unacceptable parts of this Bill and to use the entire arsenal of our powers and prerogatives to limit the damage that threatens the sovereignty of Parliament and the national interest. Let us put aside partisan allegiances on this issue. Nothing less than the nation’s future is now at stake and that is surely more important than veiled threats to the leadership of a divided party and a possible change of government that would start the process all over again. This is no time for self-indulgence.
If this House can help the Government to contribute some sense to this important Bill, it should do so. The report from the Constitution Committee shows what needs to be done. Similarly, if some of the arguments tabled by opposition parties or independent groups improve the legislation, we should give them a proper, fair hearing.
In my book, parliamentary democracy has always meant that parties that win elections or referendums do not take all the spoils of victory. They may call the tune, but they are not in the divine position of writing every note of the score. In a democracy, winners do not take all. In my experience, reflection and well-considered second thoughts oil the wheels of a liberal state and a free society.
Accusations by ill-informed pundits—mainly in the media—against this House and our alleged irrelevance belie the facts. If Parliament does its job in making this Bill and the legislation that follows in the coming months fit for purpose, I see no reason for a second referendum, but we must end the pretence that the referendum was the last word on Britain’s future in Europe. We are no longer debating a slogan on the side of a bus; that is long gone. Legally and constitutionally, this Bill must be made copper-bottomed, iron-clad and storm-proof before our statutes can revert to their made-in-UK format and we can examine the decades of made-in-Brussels directives. I believe that the Constitution Committee of this House has shown the way. Its findings should not be ignored.
Unless the Bill is made fit for purpose, the Prime Minister’s call for frictionless access to the European market, on which our economy depends and which future generations seek to enjoy, will remain a pipe dream and we, as parliamentarians, will have failed in our duty.
My Lords, it is a great pleasure to follow the powerful speech by the noble Baroness, Lady Boothroyd. In preparing for this debate, I looked up the Hansard debates on joining the European Union in 1972. Two things stood out. First, how few Members of this House spoke then—19, as opposed to 190 today. Secondly, how the warnings from Lord George-Brown, then dismissed as scaremongering, seem to have come true. I am not entirely sure what lessons we must learn from those debates except, perhaps, one. Whatever one says in this House will probably turn out to be true at some point, even if it takes 45 years.
I spoke in this House and campaigned in the referendum in favour of staying in the European Union. We lost the argument. The British people wanted their sovereignty back. We addressed lots of economic arguments and offered a good deal, with substantial reforms, to stay in. It was difficult, if not almost impossible, to explain. We did not deal with the basic concerns about sovereignty—the control which the British people wanted returned from the unelected in Brussels to their elected representatives here in Westminster.
I want to take issue with those who say that the British people did not understand what they were voting for. I think they did; they had a greater understanding than some of their elected representatives. Some were surprised by the result but, after all, the referendum result just reflected the view of a majority of the British people which has been growing for the last decade.
I have never been elected, but I have campaigned in every general election since 1974. I cannot think of a general election result when we won but did not deserve to win, or when we lost but did not deserve to lose. When it comes to politics, the British people usually get it right. As we know from Ken Clarke, you do not have to have read every detail of the EU treaty to be either for or against.
We have 10 days in Committee, on Report and at Third Reading where there will be plenty of opportunity for this House to act as it should. If necessary it can revise, or ask the Commons to think again, but not wreck nor block this Bill. There are those who want to destroy the Bill and force a constitutional impasse that might result in the Bill being lost. That would be a disaster for this House. Their outcome, of course, is Brexit denied, but the result would be a constitutional uproar, which would lead either to the reform of this House or, probably, to the abolition of a second Chamber.
I want this Government to get the best deal they can for our future relationship with the EU. Our future is not bleak; it may be different, but we will continue to trade with Europe and with the rest of the world. My noble friend Lord Hill of Oareford was absolutely right when he said yesterday that,
“we must surely place a greater priority on being able to shape our own future than on preserving the status quo”.—[
Staying in the single market and the customs union for ever would be the worst of both worlds: we would be unable to influence the rules of the single market and unable to negotiate our own free trade agreements. Of course, there are still difficult issues to be dealt with, including Northern Ireland and our relationships with the other devolved Administrations, and, not least, the Henry VIII powers in the Bill.
The process of leaving the European Union is one of unprecedented scale and complexity. As well as giving effect to the will of the people to take back control of our laws, the Government must be able to deliver Brexit while ensuring certainty for people and for businesses. As many noble Lords have said during the debate, we need more clarity from the Government on how they see our future outside the European Union. A chaotic Brexit, without a solid legal foundation, would not be in the national interest. The Government need to be able to adapt the laws we are repatriating to the new situation of being outside the European Union.
While I understand the concerns raised about the scope of the Henry VIII powers, I am concerned that Parliament will not have the time it would need to make all those changes before we leave. I agree, however, that Henry VIII powers should, if possible, be brought in by the affirmative rather than the negative procedure. Perhaps we should not be afraid in this House of rejecting affirmative instruments if we feel they are wrong and that we should ask the other place to think again.
The Government have chosen an extraordinary approach, but these are extraordinary times. We all have the right to hold different views, to argue our case and to persuade others to change their mind, but we should not thwart the will of the people as expressed in the referendum and in the recent general election. It is worth reminding those who complain about the referendum that it was a manifesto commitment by the party that won the subsequent general election, and it was then passed in the House of Commons by a vote of 554 for and only 53 against—a majority by all the main parties except the Scots nats.
This Bill is not about the terms of our exit but about the mechanism of how it will happen. We should not be distracted by debates on the merits or detriments of leaving the European Union. The Government themselves have made a commitment to ensure that Parliament will have the opportunity to consider the deal and approve what they have negotiated. We do not need another referendum, and this Bill is not the place for a referendum clause. As my noble friend Lord Hamilton of Epsom pointed out, if there were to be a referendum, no one could agree when it would happen or what the question would be. But we do need parliamentary scrutiny, and that started yesterday in this House. Therefore, I welcome the Bill and look forward to the subsequent stages of Committee, Report and Third Reading.
My Lords, I congratulate the noble Viscount, Lord Astor, on his speech. I particularly noted his warning about the dangers of a chaotic Brexit, to which I will return in a few moments. I congratulate my noble friend Lord Liddle and the noble Baroness, Lady Boothroyd, on their magnificent speeches.
I have not spoken on Europe since the immediate post-referendum debate. Some noble Lords may think that a very good thing, but, to other colleagues, I would like to explain the reason. It certainly has not been a question of my changing my mind on Europe.
My personal Damascus came when I was 18. It was 10 years after the end of the war, in the summer of 1955. I was between leaving school and my national service, and I set out to bicycle from Rotterdam to Rome—I admit that I took one or two trains. As the Foreign Ministers of the six prepared for the momentous Messina Conference, which launched the common market, I mostly pedalled along the roads and lanes of northern Europe. At night I stayed at youth hostels, where I discussed with my continental contemporaries hopes of building a new and better Europe in which war would be ended for ever and prosperity for all would be assured. It became clear to me that not only was it right that Europeans, or continentals, should unite together, but Britain should not stand aside from such a constructive and imaginative project. I still strongly believe that a medium-sized European power such as Britain should join with its neighbours for the good of its own citizens and of our continental friends.
Turning to the present and the referendum, even though it was a narrow victory for the leavers and it has divided the country almost in half, all the same I accept the result, if with a very heavy heart. I also thought that the Cabinet and the Prime Minister ought to be given a chance to negotiate our departure, which I suspected would be extremely complex. But even I, a dyed-in-the-wool pro-European, did not think the Government would make such an awful mess of things. The first phase has taken far too long—so much so that we now face the pressure of what Mr Barnier calls the ticking clock; you can almost hear it now.
One might have hoped that things would get better from now on, but I am afraid that has not been the case. One problem is that the Prime Minister has made a whole lot of unfortunate soundbites designed not to help the negotiations, but to appease the Eurosceptics. “Brexit means Brexit”—she clearly thought that that was a clever remark to make. On the contrary, it is deeply confusing and ambivalent. What kind Brexit does she mean: a hard or a soft one? Then there was, “No deal is better than a bad deal”. The Select Committee has dealt with that, pointing out that a bad deal would be a disaster for the whole country. Then there is, “Nothing is agreed until everything is agreed”. That is a fine sort of thing to encourage one’s negotiating partner.
The worst mistake of all is that the Government have announced their red lines without deciding on their objectives. The truth, as we all know, is that the Cabinet is deeply divided between the “Get out whatever the cost” group and those who think that the UK’s economic future should be taken into account. Sadly, the Prime Minister has so far proved undecided, if that is the right word, between those two factions.
There are many speakers who are far more expert than me on the legal and other parts of the Bill and the need to improve it, including the very excellent chairman of the Select Committee on the Constitution. During the passage of the Bill I will concentrate on Clauses 9 and 14, because these need strengthening to give the essential strength to Parliament to make its role meaningful in deciding whether the Government have achieved a successful outcome to the negotiations—in my view, that is key to the Bill—one that takes into account the economic and strategic interests of this great nation of ours.
My final point is a more comforting one in what I believe is a sad situation. Both the referendum and the more recent general election have made me draw the conclusion that if our generation lets the country down, the next generation—that of our children and our grandchildren—will not stand for a botched result that divides this country artificially from its natural partners. I hope it does not happen.
My Lords, it is always a pleasure to follow the noble Lord, Lord Radice, as it is to act as warm-up man for the noble Lord, Lord Cormack.
I refer the noble Baroness, Lady Byford, to the excellent speech by the noble Lord, Lord Liddle, in which he explained very clearly why many of us cannot follow her advice simply to get the Bill through as a technical Bill. The problem we have had right from the start—from the consultative referendum, to the Article 50 vote to this vote—is that as soon as the vote is over the Government put on the ratchet and say, “Well, you can’t go back now; we had a 500 majority for this”. Parliament must continue to keep its eye on what is happening and make decisions that are relevant.
Just over a week ago, Juliet Samuel wrote in the Daily Telegraph:
“This year, the Government has to conduct one of the most difficult negotiations in our history. It is not up to the job”.
Nothing that has happened in the last 10 days has weakened the strength of that criticism, and many of the speeches from the Conservative Benches yesterday reflected that unease. We have a deeply flawed Bill presented by a dysfunctional and leaderless Government. Any attempt at leadership by the Prime Minister, and there is a tug on the choke chain by the hard-line Brexiteers in her Cabinet and her party to drag her back from anything that does not fit with their ideological obsessions. Then, we have the absurd spectacle of those twin titans, Sir Bill Cash and Mr Jacob Rees-Mogg, delivering their warnings from the Back Benches and the TV studios, while that amiable chancer, David Davis, busks his way through meeting after meeting with the laconic assurance that it will be all right on the night. Meanwhile the Cabinet plots, jostles and manoeuvres for position like players in a TV soap opera. It would be farcical if it were not the future of our country at stake while the Conservative Party plays out its own tragicomic version of “Game of Thrones”.
Such a situation puts a heavy responsibility on this House to amend the Bill before us. We must address its flaws and propose remedies, as the mantra of “Brexit means Brexit” becomes ever more trite and meaningless. The first responsibility of this House is to defend our constitutional settlement against what the late Viscount Hailsham described as an elective dictatorship.
As the noble Lord, Lord Lisvane, reminded us yesterday, it is one of the deepest ironies that a Brexit campaign that promised a return of sovereignty to this Parliament ends in the biggest switch of power from the Legislature to the Executive that we have seen in modern times. I am in no doubt that the House of Lords has not only the right but the duty to resist such a power grab. To do otherwise would have long-term consequences for the powers and authority of this Parliament that go far beyond the immediate issue of Brexit. I ask noble Lords to read the magnificent speech just made by the noble Baroness, Lady Boothroyd. In passing, I note that when she describes our objective as to make the Bill “copper-bottomed, iron-clad and storm-proof”, that description also applies to the noble Baroness. I will get my ears boxed for that when we are outside.
On the economic consequences, I have never seen Brexit in Captain Oates terms: Britain leaving the European tent to inevitably perish as we try to go it alone. We will be poorer than we would otherwise be—even the Government’s own assessments tell us that—but we will get by. We will be able to earn a crust. However, I see no evidence at all that “global Britain” will find better deals free from the supposed encumbrances of our membership of a 500 million-plus single market. I wish the Prime Minister every success on her visit to China and in her desire to drive up our trade with that country. I shall give her a benchmark to aim for: let us try to reach the level of German trade with China, which is four times our own—and all from the security of that single market.
As we have heard time and again during this debate, the clock is ticking while every sector of the economy cries out for clarity and certainty. The Prime Minister and her Cabinet have to make clear the terms of our departure that they are seeking. When we know where we are going and how we intend to get there, it defies logic that a decision taken nearly two years ago without the facts should be the last word on a decision that will set the course for our country for decades to come. Both Parliament and the people must be consulted on this endgame. Without a vote on the reality of Brexit, we will be left with a raw and open wound, not least among the millions of young people who did not vote for Brexit yet will have to live with the consequences. To tell them that their ship has sailed is a cynical betrayal of the hopes and aspirations of a generation.
There is always an element of doubt about speaking in a debate with so many speakers. I do so for two reasons. The first is my three children, all in their 20s and all proud citizens of Europe. I want to be able to look them in the eye and say, “I did everything that I could to avoid this disaster”. The second is that I want to put on record my pride in a European project that has set an example to the world of how old enmities can be buried and a new era of peace and prosperity can be delivered and underpinned by civil liberties, human rights and the rule of law.
Yesterday I was much moved by the reminder from the noble Lord, Lord Krebs, of the realities for his family at the end of the Second World War. I always recall the famous Zec cartoon of the battle-weary Tommy holding a victory wreath on Victory in Europe Day with the caption, “Here you are! Don’t lose it again!”. I believe profoundly that we are in the process of losing influence in creating a better Britain, a better Europe and a better world that was passed on to us by the generation who came back from the Second World War—the Heaths, the Whitelaws, the Healeys, the Callaghans. They came back saying, “Never again”. I think we are throwing away a great deal. Until that deal is finalised, I will fight it.
My Lords, that was not a warm-up act; it was a very moving and powerful speech, and I echo much of what the noble Lord said. I too felt obliged to speak today for similar reasons. I have two sons who are much older than his children—they are in their late 40s—but they were passionately in favour of staying in, while my two elder grandchildren, undergraduates now, were totally bereft.
I do not like this Bill and I did not want it, but it is before us. I hope there will not be a Division on it this evening. I also hope the noble Lord, Lord Adonis, who moved his amendment yesterday with great passion and force, will not test the opinion of the House tonight. His own Front Bench have made it plain that they could not support him, and the result could be misinterpreted because he would not get the votes that he might otherwise obtain. That is not to say that I would vote for a second referendum—I find it very difficult to think of that—but I just make the point.
The Bill must pass, but the Act that it becomes and that emerges from your Lordships’ House must be an assertion of parliamentary democracy and not an abdication of it. The Bill needs significant amendment, as our own Constitution Committee so graphically and splendidly demonstrated.
I am one of those who believes that referendums are inimical to parliamentary democracy, but they are part of our system now and we have had a number of them. But we must also recognise that we are where we are, and I was on the losing side. As a loser, I must try to be gracious. But those who won should try to be magnanimous. They should recognise that their margin of victory is no cause for triumphalism. They should consider our union—the United Kingdom. They should consider that in Scotland, Northern Ireland and London significant majorities voted to remain. I hope that during the passage of this Bill we will hear from Ministers on our Front Bench a clearly articulated sense of direction and destination.
Before I was turfed off the EU Home Affairs Sub-Committee for having the temerity to vote against the Government on amendments almost a year ago, I heard witness after witness come to our committee to indicate that the success of negotiations would be judged by how close the agreement in question came to replicating what was being replaced. That is a bit odd, is it not? That is why I am one of those who feel that it was not a good negotiating ploy, before the negotiations even started, to draw red lines that outlawed certain important things, such as contemplating membership of the customs union. As a true Conservative, I was brought up to believe that one should advocate change only if one is convinced that the latter state would be better than the first.
Yesterday, I sat in this Chamber for almost the whole debate and I listened to 67 very interesting speeches. Much was made by the Leavers about the predictions of what might happen straight after a vote to leave. But as I tried to indicate to my eloquent and alliterative noble friend Lord Ridley, we are still in the European Union. Predictions that we read about today are the ones we should perhaps view a little more carefully.
It was a bad campaign. There was hyperbole on one side and mendacity on the other. As the right reverend Prelate the Bishop of Leeds indicated in a fine speech yesterday, there was too much emphasis on economics. There was no vision. I hope that he does not have the modern prelates’ aversion to the King James Bible, but I thought that he might have said:
“Without vision, the people perish”.
The visionary element was lacking. Of course, vision and nostalgia are very different things. Brexit is not about recreating a country that exists only in the imagination. We are at a crossroads without a compass and with squabbling back-seat drivers. It is important that the Government indicate what they see as the preferred outcome. The Prime Minister must not be cowed and prevented from making speeches by some of her squabbling Cabinet colleagues.
We can all recognise what we are, whether we come from England, Scotland, Ireland or Wales. I always say that my identity is English, my nationality is British but my civilisation is European, and I am immensely proud of that. I hope that when we come to the end of negotiations, after this Bill is long on the statute book, there will be a coming together, because I fear an implosion within my own party. I am sorry he is not here at the moment, but my oldest, longest friend in politics—and a very dear friend he is too—is my noble friend Lord Lamont of Lerwick. He has a reputation for singing in the bath. I cannot challenge him on that, but I hope that when the dust has settled, he and I can sing in unison—it will not be a pretty sound but it might be an agreeable conclusion—the song he made so famous, “Je ne regrette rien”.
My Lords, it is a pleasure to follow the noble Lord, Lord Cormack. When I saw where I was placed in the order, I was confident that I would be following a speech that contained a robust defence of parliamentary democracy. My noble friend Lord Foulkes reminded me that he once described the noble Lord as being a man who was made for this place. Having watched the noble Lord here and in the other place and having been privileged to hear him speak, my observation is that he thinks that this place was made for him.
Only yesterday, we witnessed another indefensible and probably ultimately futile attempt by the Government to deny Parliament access to the information that it needs to hold them properly to account and simply to do its job. We all already know what the economic analyses of the consequences of the only feasible Brexit deals say and few of us are at all surprised. The Government will not be able to defend their position against the will of the majority in the other place for long. Eventually these documents will be published—although they already are.
For months now, every time that they have been faced with a reasonable request for explanation or clarification of the Government’s Brexit objectives, Ministers or government spokespeople have refused to give an answer, because apparently that would somehow undermine the Government’s negotiating position. I have been bemused and questioning of my own substantial negotiating experience and instinctive belief that there is no such negotiating advantage to be had. I feared that I might be alone in thinking this, because it never seemed to be challenged. That was until yesterday, when the noble Lord, Lord Higgins, in a few sentences exposed that the emperor has no clothes—the fallacy of that argument—to the amusement of many Members.
Throughout the negotiations, the EU 27 have clearly shown their collective hand—we are told that a decision was made in two minutes the other day—and because of that have maintained a position of dominance over the UK in the negotiations. As has become obvious, the truth is—there are many ways of explaining this—that a deeply divided party in government simply cannot answer these important questions because they have been unable to formulate a clear, common position. If you want specific evidence of that, Mrs Merkel revealed in a recent informal press conference, to the amusement of everyone, that every time she meets the Prime Minister, the Prime Minister asks her to formulate that position for us, saying, “Make me an offer”. No wonder we are in such a desperate state.
I am content to adopt the opening words of many noble Lords that this Bill is necessary. While it is complex, difficult to interpret and lacking in clarity, it is necessary that we have a Bill of this nature for exactly the reasons set out in the opening speech from the noble Baroness the Leader of the House. The Bill should never have come to this House in this state, but it is clear from the debate so far that the problems with it cannot be addressed other than by the most detailed and robust scrutiny and significant amendment and, to get to that point, the Bill requires a Second Reading.
I also agree that, when we see the terms of the final agreement, a concluding democratic process is required. My noble friend Lord Adonis argues that that should be a further referendum. I, too, should like to see a further referendum but, for reasons others have expanded on, I am able, and I thank the noble Lord for this, to adopt the position of the noble Lord, Lord Butler, who, in agreeing with my noble friends Lady Smith and Lord Mandelson, accepted that this Bill is not the appropriate vehicle to require a further referendum—by the way, I fear the interpretation of any failed vote that the noble Lord, Lord Cormack, described—while undertaking to support any amendments that propose a further referendum among the options if Parliament is given a meaningful vote after the conclusion of the negotiations.
As a relevant aside, what is “a meaningful vote”? The proposed withdrawal agreement and implementation Bill may provide a vote on the agreement but, given Article 50, can it be meaningful? If Parliament likes the deal and votes for it, the deal is implemented and the UK leaves. If Parliament does not like the deal and votes against it, Article 50 operates and on
I am sure that by now the Minister is clear about the issues that will be demanding his attention in the later stages of our deliberations. Paramount among them is the imperative that there must never, ever be a hard border between Northern Ireland and the Republic of Ireland. To achieve that, Northern Ireland and the Republic must be in the same customs union. The stakes could not be higher. I trust that the Minister will address this issue and make clear that that will never happen.
In the limited time available, I want to engage just one aspect of an issue that has already been discussed at some length, the devolution provisions. The political deficiencies of these provisions were accurately highlighted by the noble Lord, Lord Campbell, who said that they would be a recruiting sergeant for those in Scotland who seek to advance their independence agenda by blaming London for everything. At a time when the Scottish electorate are minded to make the nationalists accountable for their failures, this is an unnecessary and self-inflicted wound. The constitutional and legal deficiencies were exposed forensically in an important contribution by the noble and learned Lord, Lord Hope. In her opening speech, the Leader of the House promised that the Government would publish an analysis shortly to show the specific policy areas where EU law intersects with devolved competence and where the Government will require a UK-wide legislative framework. In addition, she reiterated the Government’s commitment to bring forward amendments to Clause 11.
In an earlier debate in this House on these issues, my noble friend Lord McConnell proposed a practical solution to this problem based on good faith negotiations. Negotiations are apparently ongoing, but the poker game continues. Yesterday, in a meeting with Michael Clancy, the Law Society of Scotland’s law reform director, he told me that he had analysed, over three months, the 111 powers in the list prepared by the Government to inform discussion between the Scottish and UK Governments about where it may be necessary to agree common frameworks. This list must exist. If it does, will the Minister undertake to let us see it before we debate these issues? It is the secret to a practical solution to this problem.
My Lords, it is intimidating, frankly, to hear the breadth of experience that has been brought to this debate, but I will do my best to speak from my much narrower experience. I spent the last couple of weeks heavily engaged in the anti-money laundering part of the Sanctions and Anti-Money Laundering Bill. That has very much shaped my whole approach to this Bill, because the premise of that anti-money laundering part was the powers that currently go through a democratic process at European level: the fourth anti-money laundering directive was subject to consultation, scrutiny, debates within the European Parliament and votes in Council. The whole thrust of that Bill was that those powers should be repatriated to the UK, transferred not to this Parliament to treat in a similar democratic manner with primary legislation but directly to Ministers to make their decisions and enact them simply through regulation. That was an extraordinary shift.
This House negotiated with the Government. There were people anxious about the issue, led by the Law Lords—or rather our specialists in constitutional law, such as the noble and learned Lord, Lord Judge—but it was much broader than that. The Government made significant amendments, but it took two votes in this House to take out of that Bill the clauses that gave Ministers the power to create criminal offences and sentences—in one part of the Bill with imprisonment for up to 10 years, in the other with imprisonment for up to two years—by regulation alone.
I do not know how the Government will deal with those issues when that Bill goes to the other place, but when we read the European Union (Withdrawal) Bill and we hear the Government say that they will use their Henry VIII powers in very narrow ways, largely for technicalities, we recognise exactly the language that we heard during the debates on the Sanctions and Anti-Money Laundering Bill, which in practice, in the eyes of almost everyone in this House, had a dramatically wide scope. In the case of that Bill, and I think this is illustrative, it was not just to achieve some immediate transposition of powers from Europe to the UK; the new system for exercising powers over anti-money laundering policy and frameworks was to be in perpetuity.
You can imagine that I take very seriously that part of Clause 9 in which the Government seek powers to change any piece of primary legislation, including the EU withdrawal Bill itself, and any of the limitations and constraints within it. It is with that hat on and with that concern that I will come to the Committee stage. I will be fighting particularly the Henry VIII powers to levy taxes, fees and charges, but I am sure that this House will tackle the issue far more broadly and recognise the significance of doing so.
In her opening speech, the noble Baroness, Lady Evans, talked about the importance of giving certainty. Who could disagree with that? It is critical. To me, though, certainty would mean that we knew what the Government’s plans were for the outcome of Brexit. The financial services sector, with which I am extensively engaged, has been denied even a position paper to outline what the Government’s preferred end position would be and to provide some sort of structure. That industry is part of the backbone of our economy.
We understand that there will be a transition period, largely a standstill, and that is welcome, but it is vital that individuals and businesses know now what it is meant to be a transition to. I talked last week to an inshore fisherman in Northern Ireland. He has to decide now whether to sell his boat because, following Brexit, all the good inshore fishing territories will be in southern Ireland and, if he does not sell his boat now, in a year or two it may be worth nothing. I talked to an architect, who told me that a Dutch client would like to engage him in a long-term development in the Netherlands. Will his qualifications be recognised? Will he be able to deliver his services from a UK base? He does not know, but he must decide now. A US company is seeking to do a five-year interest rate swap that it would normally clear through the London Clearing House, but will that be a valid swap in five years’ time or will the CCP with LCH be an unauthorised body, and will the company be in significant trouble with the regulatory authorities in the US? These are real decisions. Little companies, individuals and big companies alike have to be able to make decisions and act on contingency plans. For that, they must have clarity from the Government.
I realise that in a politically riven Government fudge is seen to have a great advantage, but we are at the point where that can be sustained no longer. I hope that the Government will see that certainty should apply not just to the measures in the Bill but to those broader issues as well. We must take the opportunity to use the Bill to make sure that people will be able to look at that final deal. The possible impacts on individuals, companies and people’s daily lives are across such a broad spectrum that surely, in a democracy, the people should have the final say.
My Lords, en principe I am against repealing the 1972 Act. I have a personal reason for this. My father was the 1960s equivalent of a UKIP leader. He campaigned against Europe and it irritates me that he has somehow posthumously won by means of an advisory referendum—referenced by the noble Lord, Lord Higgins—that not did not even express the will of the majority of registered voters.
Apart from that—I will get over it—I am unashamedly European. I have lived and worked in Europe and my degree was in European languages. I have Italian in-laws. I want to preserve peace in Europe. I support enlargement of Europe. I refuse to go into choppy, uncharted waters with a salt-caked smoke stack. I do not think that the Government have got it right.
However, I am also an independent. I sympathise with the Lib Dems, but I also understand some of the fears of Brexiteers about regulation, the eurozone, closer union and immigration. Those are genuine fears. But I would prefer that these vast issues were tackled inside Europe in some form or other. As the noble Lord, Lord Patten, and others made clear, this major decision is all about one party and not about the whole country. I see Brexit as a costly and desperate scramble to retain all of the undoubted advantages of the EU without having to sit around the table talking about them. Monsieur Macron was right: we are having our cake and eating it, but we are also getting bad indigestion.
The country now divides into three: the Remainers, the Brexiteers and those, like me, who are still asking, “How do we get out of this mess?”. The human cost of Brexit is undeniable: just look at the loss of NHS staff besides all the forecast effects on education, culture and the economy. But there may yet be a way out, short of complete withdrawal and without a second referendum.
Few of us want to sabotage the Bill. It is a necessary Bill and the debate is not about the Government’s plans—since on many things they have no plans. We must, and I am sure that we will, vote to retain all of our current EU-derived legislation. But along the way a few things stand out so starkly that they have to be mentioned, and they have been. We still do not know where we are going. Worse than that, on some issues we are going into a chasm or void—words used by the noble Lord, Lord Duncan, last week. But he also quoted Burns:
“Oh let us not, like snarling curs,
In wrangling be divided”.
The darkest hole is in the sea between Ireland and the United Kingdom, something equivalent to the Corryvrechan. The Government’s position on the border issue is muddy because they are trying to reconcile the irreconcilable between the Irish and Northern Irish positions. I urge the Government to show their hand soon and to be guided, as the noble Baroness, Lady O’Neill, said, by the Belfast principles, since as my noble friend Lord Eames and others said last week, they cannot leave the people in such uncertainty.
The people of Gibraltar share some of the uncertainty felt in Northern Ireland. How could the Government get so close to the cliff edge as to cause anxiety and even worse, if the people of Gibraltar are not given proper guarantees? Then, there is devolution. Last week’s debate showed clearly that the devolved Administrations were not properly consulted and that amendments in the Commons were never discussed. There are still many UK issues to resolve in the UK before we go back to the EU negotiating table.
Constitutional experts are still worried about the exceptional use of delegated powers and whether the Government should assign a single status to retained EU direct legislation. My noble friend Lord Kakkar showed how much damage there will be to science from any uncertainties that continue through the transition. Children’s charities and lawyers are concerned about the exclusion of the Charter of Fundamental Rights. Other people are in considerable doubt about future references to rulings of the ECJ. The Greens and many others say that environmental law is not being fully translated into UK law. We heard about that from the noble Baroness, Lady Featherstone. I shall be supporting amendments on all these issues unless the Government put down their own to meet these concerns.
I feel confident that this Parliament will now have a say on the final deal although, if it rejects the deal, there will have to be further renegotiation. The EU knows this and would like us to remain in Europe. I believe it is not impossible that, in the event of rejection, we shall have the opportunity to remain as a member under Article 50, but on new terms. If not, then the Government will have to look for some intermediate status, alongside the single market. No one seems able to forecast what that might be or even whether such a status exists.
In short, we have got ourselves into a mess. I doubt if any party, or any organisation outside Brussels, can pull us out of it but I hope and am confident that this debate will have made a contribution.
My Lords, it is a privilege to speak in what has been described as a historic debate on a technical Bill. In the time I have, I will constrain myself to addressing just a few points.
The first concerns the referendum vote. I noted with interest the passage of the Bill in the other place and the remarks by the shadow Brexit Secretary, repeating demands for a meaningful vote on the Brexit deal. I simply draw attention to the meaningful vote we had already in June 2016. It is now the job of Parliament to scrutinise, not to oppose this necessary legislation. Whether one voted to leave or remain, reconciling the result with a position that leaves the UK not in control of its borders, courts and fiscal contributions to the EU would feel very jarring. This applies as much to Parliament seeking to thwart Brexit by voting down the European Union (Withdrawal) Bill, as it does to those siren voices now calling for a second referendum. As my noble friend Lord Astor said, the people have spoken and it is the job of this House and the other place to make it work as smoothly as possible. If the shadow Brexit Secretary wishes to continue his search for meaning, then he should look no further than improving this Bill.
I commend some of what the chairman of the Brexit committee has to say, particularly as he reminds us that this legislation is necessary. We must pay heed to the Constitution Committee, which describes the Bill as deeply flawed. We must seek to improve it to the committee’s satisfaction where we can.
As this is a technical Bill, I offer some technical observations. In the other place, MPs raised the uncomfortable question of pre-exit disputes, many of which arose several years ago and which may now not go to the ECJ. In my opinion, they clearly ought to, as they arose under the old regime. The Francovich principle, which has been raised in this House before, has been removed from the Bill. I hope my noble friend the Minister will reconsider this. I am aware of instances where it would lead to a very unfair result and deprive genuine claimants of going to the EU court. I am happy to brief the Minister on this if required.
I turn to a particular area of interest of mine—financial services. In the other place much of the debate was about the use, or overuse, of delegated powers—the so-called Henry VIII clause. I must take issue with much of what was said. Lamenting the use of delegated powers is a common tool in all opposition toolboxes. When they have run out of points of principle, they resort to points of process. Leaving that aside, much of the criticism was largely fallacious. As the EU committee set out, in financial services in particular, EU laws follow the Lamfalussy framework. Reading the debate in the other place, it is almost as if many want even the lowest level of content included in UK primary legislation. Yet, as the Investment Association has pointed out, in financial services, at least, much of EU law is better handled here by the regulator, not to circumvent democracy but for reasons of efficacy and practicality. It is simply about appropriate levels of detail. As the renowned EU legal expert Simon Gleeson pointed out to the EU Committee,
“the Bill will perpetuate one of the main defects of the current EU position, namely that too much detail is in legislation and is difficult to update”.
There may well be much to be improved in this Bill, but cramming it full of regulatory issues better handled in secondary legislation and regulatory guidance and enforcement should not be part of that process.
I add my voice to those who have warned against a second referendum. I appreciate that its advocates are saying “not now” but they are pushing us down a very dangerous road. If the EU detected that there would be a second referendum, can your Lordships imagine its negotiating position? It would make an agreement that much harder. Is that the agenda of those calling for a second referendum? I hope not, and that those who might be talking down our negotiating position recognise that. There is no real prospect of holding a referendum without causing huge anguish and pain all over again between friends, parties and even families up and down the country in what would inevitably be a difficult campaign full of bias and hate. As Brenda of Bristol famously said: “What? Not another one!”.
My Lords, there is much in the Bill that merits deep and extensive scrutiny, but at this stage I simply want to signal alarm at the treatment of human rights. “Human rights” is a legal term for what we might otherwise think of as respect for individuals and recognition of their human dignity. We have acknowledged its importance in devising the powers of the state since our earliest times, and we have pursued it more or less consistently in our long participation in international and European law-making.
So it is disturbing to see that, despite valiant efforts in the other place on all sides to retain the Charter of Fundamental Rights, the Government have insisted that it be discarded from our law. It is true that when the Labour Government, in the person of my noble and learned friend Lord Goldsmith, negotiated this important instrument, it did not at that time confer any new rights. What it did was codify existing fights and provide for actual remedies against breaches. Our Human Rights Act provides only for a declaration of incompatibility if our law breaches the European Convention on Human Rights. Under the charter, damages may be awarded. How much more useful is this to the wronged citizen than a declaration, even if eventually, that results in a change in the law? What are the Government going to do to put this right?
At least as important is the development of the usefulness of the charter since we helped to bring it into being. There are too many areas where the charter now goes beyond the convention, and thus our own Human Rights Act, to enumerate in the time available. The free-standing right to equality, a right to vocational education and some of the protections for children are among the most telling. Case law has brought new safeguards in respect of data protection, for instance, including the basis for the right to be forgotten. These too would be lost under the Bill. There are also general principles under the charter which we would lose as a basis for challenging injustice under retained EU law, such as proportionality—unless, the Government now say, the challenge was brought within three months of exit, which is surely a paltry concession.
We should also be very concerned about the vulnerability of our rights to the regulation-making power in the Bill. Is it not manifestly unjust and unparliamentary to subject fundamental rights to secondary legislation? How can we accept the prospect of a Government easily dismantling the enhanced protection given to the environment, consumers, health and safety and the rights of workers not to be exploited? We need a strengthened scrutiny procedure beyond the Government’s new add-on of an EU SI Committee, and stronger than the concession of declarations concerning equality.
It is notable that the Government’s impact statement omits any consideration of the impact of the diminution of rights and redress for their breach that follows from discarding the charter and from the use of secondary legislation. Will the Minister commission a fresh study to remedy this deficiency? Of course, if we had a written constitution many of these fears could be allayed. The Supreme Court would then have a basis to put a stop to any future legislation curtailing the freedoms we have achieved, for instance in equality and working conditions. This is quite apart from the other advantage that it would be taught in schools so that all citizens and, for that matter, would-be citizens could know exactly what our values concerning justice, rights and responsibilities meant for them.
The Government have recognised the anxiety expressed on all sides about their treatment of human rights in this Bill in their Right by Right Analysis. I welcome the undertaking to,
“look again at some of the technical detail about how the Bill deals with the general principles of EU law … and how some challenges based on the general principles might continue after exit”.
This confirms, however, that all the charter rights will not be carried over after Brexit. That is what we need to fight for.
Finally, there are many amendments we ought to discuss in Committee. I hope that among them will be a provision that the Charter of Fundamental Rights will still apply to EU-derived law and that the right to damages which result from the Government breaching EU law will be protected. If the Government set their face against entrenched law, this could be done through adding provisions to the Human Rights Act 1998.
My Lords, like many other noble Lords I am disappointed that the EU withdrawal Bill has come to this House almost unamended by the House of Commons and that the legislative attempts to retain and even increase the power of the Executive, which will affect Wales so significantly, have shamefully failed to be successfully challenged by Members in the other place.
The inclusion of Clause 11 in this Bill by the Government was surely a case of imperial arrogance—or incompetence. Having listened to the Minister say at the end of last Thursday’s devolution debate that the Government were working on, but struggling to find, the correct wording for their amendments, I suspect the latter is nearer the mark. I look forward to seeing these amendments in Committee and taking part in the debates that will follow.
The Prime Minister’s decision to announce, so soon after the referendum and so early in the withdrawal process, that we would also be leaving the single market and customs union was, in my view, a mistake—a red line that will have a real impact on Wales. The rejection in the other place of the amendments to include them in the Bill is disappointing. If a similar amendment is proposed in Committee, I will support it.
Noble Lords already understand the advantages of the single market and customs union to Wales. We trade with our nearest neighbours. We have access to a market of 500 million people. That trade is tariff free and the market accepts over two-thirds of our exports. Its importance to the Welsh economy has been recognised by the Welsh Labour Government, who have called for “free and unfettered access” to both the single market and customs union, a call that unfortunately seems to be unheeded by the Labour leadership in Westminster. I wish the noble Lord, Lord Liddle, every bit of luck in trying to persuade his colleagues.
The much maligned—by those who support Brexit—free movement of people and goods has been a boon to companies such as Airbus, which employs 7,000 people in Broughton in north-east Wales. A new customs bureaucracy and reduced employee mobility could damage long-term investment there and accelerate a shift to Asia where China, according to representatives of the company, is already,
“knocking at the door as a result of the situation that we’re in in this country”.
Our situation is characterised by a deep uncertainty about the future direction of the UK which is fuelled almost daily by the contradictory and confusing messages coming from around the Cabinet table. Farmers seek certainty that they will not be priced out of their European markets and that the funding that they need to plan for their farms’ future will be available. Manufacturers need confidence to invest to grow their businesses, and communities are beginning to understand and lament the end of structural funding.
Workers in Holyhead on Anglesey would be grateful for certainty on the question of the Irish border. The fact that talks with Michel Barnier have moved onto the second phase has fooled none of us; the fudge over the border seems to have been a charitable device by Mr Barnier’s team to give the Prime Minister some credibility. This most difficult question seems to have been placed in the “too mind-blowing for now” box and shelved.
Our place in Europe and our place within the single market and customs union have led to Holyhead developing into the large port that it is today. However, the recent announcement that from April, Brittany Ferries will be running a ferry service for cars and freight from Cork directly to the north of Spain, so “avoiding the land bridge” between Ireland and Europe, rings alarms in North Wales. Potential job losses in one of the poorest areas of the UK will be devastating.
Finally, on a personal note, I want to say a few words about the referendum result and introduce some facts and figures about the influence of identity on people’s voting choices in that referendum. It has been claimed, in one national newspaper in particular, that the vote to leave the EU was an English national revolt achieved with the acquiescence of the Welsh. Research carried out by the British electoral survey points to another possible scenario.
To begin with, an important factor to note is that about one-third of the population of Wales were born in England. The survey data shows that 60% of those living in Wales who identified as both strongly English and strongly British voted to leave. On the other hand, of those who felt strongly Welsh but not strongly British 71% voted to remain. Of those fluent Welsh speakers who strongly identified as Welsh, not British, a massive 84% voted to remain. So as a Welsh-speaking, strongly Welsh-identifying Member of your Lordships’ House, I make the gentle request that in future these factors are taken into consideration when apportioning blame or even credit for Brexit. The Leave vote may have been won with the help of the majority of those who live in Wales, but certainly not with the aid or acquiescence of the majority of the Welsh.
My Lords, it is humbling to speak in this debate after so many excellent speeches. I want to focus on a somewhat different issue from those raised by most people here, the issue of Russian interference in the Brexit referendum campaign, and to reinforce the argument for a meaningful vote or votes in Parliament. The Dominic Grieve amendment is indeed a valuable start and it must not be lost, but it is essential that there are additional amendments to ensure that parliamentary sovereignty really rules in this process. Clearly, Parliament cannot seek to interfere with the referendum result unless the British people can put the misinformation behind them and come to understand, as they are beginning to, the reality of the risks to their jobs and standard of living presented by Brexit.
I will talk about Russian involvement in the Brexit referendum campaign as someone who lived in Moscow and worked within a Russian ministry—funded, I should say, by the British Government; I do not want people to get the idea that I am some sort of Russian spy. During my three-year period in Moscow I developed a deep affection and respect for the Russian people with whom I lived and worked. I am not anti-Russian. At the same time, we should not be naive about interference by other countries in our precious democratic processes. Governments need to take steps to protect the British people from those influences in the future. Whatever Government we have in place, it is vital that work is done to interfere with this process. What is the point of another referendum, or an election, if Russia may determine the outcome?
We know that Russia has put massive resources into developing social media infiltration tools. As your Lordships know, my noble friend Lady Lane-Fox is on the Twitter board and knows a thing or two about these matters. She is aware of such Russian investments. Russia would make these investments only in order to use the tools against the West. Of course, Brexit will damage Britain and the rest of Europe: it is a pretty brilliant stroke by Mr Putin. We know for a fact that in the Trump presidential campaign, 126 million Americans received personally tailored Facebook fake news. Someone closely involved in the digital economy—not my noble friend Lady Lane-Fox—takes the view that it is almost certain that Russia used similar social media methods to influence the result of the Brexit campaign. This is, however, very difficult to prove. When I contacted the Electoral Commission last summer, it was investigating Russian involvement in the Brexit referendum. At that time I was told by an investigator working closely with the FBI that Russian money funded the Brexit campaign—not totally, but substantially—and that it was the link between the Brexit and Trump campaigns. In fact, I have been told rather more than I feel able to say today.
Suffice it to say that already, more people are against Brexit than support it, as other noble Lords have said. If sufficient information comes to light about Russian distribution through Facebook of misinformation tailored to local communities during our referendum, we can expect that a growing number of the British people will want Parliament to intervene. There is a risk that this information may not come to light in time for 2018. For a start, Facebook is a closed dataset. As your Lordships will know, the information on a Facebook page is available only to “friends” of the user. Also, Facebook has 2 billion monthly users; imagine the task of going through that material, albeit electronically, to find the information. It may, therefore, not be possible for Facebook to get hold of the information in time. It has, however, employed thousands of staff to do just this job. The question is whether they can find out what happened and, if so, when.
I have two questions for the Minister; one that I hope he or she can answer, but the other may be more difficult. First, is the Minister aware whether or not MI6 is investigating Russian involvement in the Brexit campaign using social media infiltration tools and funding? Secondly, has MI6 commissioned work to develop tools to combat the Russian equipment to prevent interference in our referenda and elections in future? The British people and Parliament need this information.
As well as amendments on a meaningful vote for Parliament, I will want to support amendments that relate to the charter of human rights. However, I cannot overemphasise the importance of parliamentary sovereignty and meaningful votes for Parliament.
My Lords, it is a great pleasure to follow the speech of the noble Baroness, Lady Meacher. I remember well partnering her late husband in tennis in West Virginia when we played against the American Senate. He was, certainly in private, a very charming man. I also agree with her about the dangers of Russia, but I am not going to talk about that now.
It is clear from this debate that your Lordships’ House is not exactly rabidly Eurosceptic. I am, though, and perhaps I owe the House some explanation of that. I start with what has become the customary homage to the speech of the right reverend Prelate the Bishop of Leeds. He is of course right that economics is not the only matter affecting this debate, although it is not completely unimportant or irrelevant. When you are dealing with a protectionist trade bloc, which the European Union is, it is bound to have ultimately a negative effect on your trade and economy. There is certainly a read-across there.
Much more important, and the reason why I think we should get out of the European Union, is democracy. The European Union is undemocratic for two reasons. It does not have a mechanism for true democracy, which requires a direct relationship between the electorate and the Government. The electorate chooses a party, preferably in private, and votes it in. There is such a connection between the electorate and the Government that the electors, having elected their Government, are willing to pay allegiance to them. There is a synergy about the whole thing. In Europe, the matter is aggravated by the fact that the laws are made on the whole by the European court, which is undemocratic and relies on the acquis communautaire for its inspiration. The acquis is quite clear that it requires the court to make judgments in one direction, towards a federal state of Europe, that is irreversible.
Some people say that this process can be reformed. In the foreseeable future at least, that is highly unlikely. Take, for example, Britain. If we were to go back into the European Union, it is absolutely unimaginable that the court would not insist that sterling would be joined to the single currency, and quite rightly so. You cannot have a single market for ever without a single currency. That would be the loss of Britain’s freedom, which is involved in the sovereignty of Parliament and in no one Parliament binding another. That would just go. The trend in that case would be anti-democratic so far as this country is concerned.
I would like to refer to a speech made yesterday by the noble Lord, Lord Winston. It is something that has troubled me quite a lot about the attack that is made on people who think, like I do, that the nation state is the best unit of democracy. I will read one paragraph from it. He said that,
“Andrea Sella talks about a maternal ancestor. He is not Jewish but his ancestor was. Apparently she called him early in the morning when the result of the referendum became clear. She said, her voice choking with emotion:
‘How can these people forget so soon where nationalism leads you?’”—[
The innuendo is clear. I could turn the whole thing on its head and say that World War II, for instance, was brought to a halt and peace was established by the nation state against the pan-European movement led by Germany. That absolutely turns on its head an argument that is constantly used against people such as myself and Eurosceptics, and quite wrongly so.
My Lords, in common with just under 70% of those who voted in the area from which I come, in the referendum I voted to leave the EU. It appeared to me, for many of the reasons that the noble Lord, Lord Spicer, has just given, that political power had moved into the hands of an unelected, over-regulatory bureaucracy, which was out of political control and had no willingness or ability to reform. Further, it was heading in the direction of a single state for which it has no mandate and, in this country at least, very little support. I therefore support the Bill. But I am acutely aware that the referendum divided members of the same political parties, close friends and, as I know personally, family members, some of whom cannot or will not accept the result, like some Members of this House.
I have either listened to or read every speech that has been made in this debate so far, and I have heard powerful speeches from noble Lords with far greater knowledge and experience of the EU and its workings of government, law, finance and industry than I have. I have heard powerful speeches from powerful people. But, for me, louder than all of their arguments is the voice of Colonel Rainsborough, one of the Levellers, speaking for one man, one vote, in 1647. He said:
“the poorest he that is in England hath a life to live, as the greatest he”.
How often have I listened in this House to noble Lords speaking of the need to encourage people to register and vote. The usual response from those who do not is, “My vote doesn’t count”, and they are usually right, especially in constituencies with large majorities. In the referendum, every vote did count. People voted in all-time record numbers. They were told, among others by the Prime Minister of the day, that that vote was a binding one and that it would be acted on. So, for me, the Bill is about giving effect to democracy. Being in Berlin recently made me reflect, as other noble Lords have during the course of this debate, on the political history of the last world war. When the governing elite stop listening to the people, the people are drawn to and eventually turn to extremism. That is a lesson that we must not forget.
The Bill, passed by the elected House is, as most noble Lords have said, far from perfect. The law-making powers of Ministers need to be defined and restricted on the face of the Bill. There needs to be clarification of the status of EU legislation to create legal certainty, and there needs to be much clearer devolution of powers to Scotland, Northern Ireland and Wales. I will support the amendments that seek to improve the Bill, but not those designed to put a spanner in the works. I hope that the noble Lord, Lord Adonis, will not press his amendment. We always knew that the negotiations for our exit would be difficult. Without our contribution to the budget, the EU is insolvent and there are other member states with at least very strong reservations about membership. The Commission was always going to make life difficult, even at its own expense, and I am afraid it is further encouraged by those who tell them, hopefully, that Brexit may not happen.
I think that we can all agree that the biggest threat to our economy is uncertainty and to be plunged once again into another divisive contest of a second referendum, with all the acrimonious campaigning again, would be bad for our economy, our national unity, and democracy. As I recall, we had a general election only a short time ago. The party that campaigned to stay in was as good as annihilated, except of course in this House. My party, which did a great deal better than expected, campaigned on a manifesto to leave both the single market and the customs union and, I am glad to say, no repeat referendum. I am particularly grateful for the restrained and reasonable way in which my noble friend Lady Smith of Basildon opened on behalf of these Benches. The prevailing message that I get from people who voted on both sides of the referendum from outside this House is, “Just get on with it”. Let us do just that.
My Lords, I am grateful that I have not yet been annihilated. It is disappointing that those who lost in the referendum are still demanding another one. It does not help for a government Minister to describe certain Eurosceptics as “swivel-eyed”. I had hoped that we had got past that level of debate.
In a high turnout, the people voted to leave by a majority of 1.5 million—huge in electoral terms. In the last election, if 40,000 voters in the most marginal Labour seats had, instead of voting Labour, voted for the runner-up, Labour would have lost 40 seats. It was that close. Let us suppose that the leavers were to lose another referendum—unlikely, in my view—then we would have every right to demand a further, deciding referendum. Let us respect the people’s wishes. We are not the EU, which asks members to vote again when it does not like the result.
We cannot argue that the remainers did not fire every barrel, from Mr Cameron’s “World War Three” to Mr Obama’s “back of the queue”. He was sadly so ill informed that he did not know that there was a queue of one—the EU. President Hollande, Madame Lagarde and every other leader you can think of all warned of economic disaster. Even the poor old CBI, which opposed the ERM, was in favour of joining the euro and is partly financed by the EU, is still at it. The Bank of England has got it wrong yet again. The governor is still muttering that the GNP would be 1% higher if there had been no vote to leave. How on earth he works that out is quite beyond me. As for the latest leaked economic forecast, it must have been leaked by remainers. In 2005, UK trade with the EU was 55% of the total. It is now 45%. If present trends continue, it will be 35% in 10 years’ time, or 10% of GDP. Are these forecasters seriously suggesting that EU trade would halve if their 5% reduction in GDP occurs if we choose the EFTA route? It is simply not realistic.
The case for remaining was set out. The Government even spent £9 million of our money doing just that. Everything we have seen since the referendum has justified our decision. There is general dissatisfaction throughout the EU with the present arrangements. Incentives are given to big businesses to locate in Luxembourg, contrary to the rules. Then there is the situation in Poland; no stable government in Germany; upcoming elections in Italy; the state of the European banking system; and even President Macron says that the French—how wise—might vote to leave if given a referendum.
Quite why the EU is so desperate for our cash, I do not know. With a budget of some €150 billion, surely it can be cut by 10% or 15%? One has to ask how the proposed sum we are thinking of paying the EU is arrived at. Yes, we should pay for commitments entered into when we are a member, but why should we pay for access? Surely it should be paying us. It has the trade surplus, not the UK.
I am somewhat nervous about how the Government will use the so-called Henry VIII powers. For many years, we have had to accept all regulations and laws from Brussels with no possibility of rejection. I hope we can trust our Government more than the unelected bureaucrats in the EU. As was mentioned yesterday, let us be careful of having a Corbyn Government.
I wish our negotiators well, but the signs are not auspicious. We are allowing the EU to dictate the agenda. Normally, an agenda is agreed between the parties. One gets the impression that we are going into these meetings with no clear objective other than to listen to the other side and to try to compromise. Negotiations are better if both sides feel that they have won the argument. So far, we have been the givers. We need to get back our territorial waters and our ability to do trade deals, spend our own money and make our own laws, and we need to keep Gibraltar and keep an open border in Ireland. However, how one can get 27 countries, all with their own agendas, to agree to this I do not know, unless we give a lot away. We must adopt a harder line in the negotiations. The EU has much more to lose than we do. We have the world to expand into.
Any implementation period must be as short as possible. Two years is more than enough; otherwise, it will be dragged out for ever. We must not be subject to any more EU laws or regulations during this period. Financial services should be included in any deal if possible, but let us not panic if they are not. We are the world’s financial centre, and the EU business through us is a small percentage and not that critical. Already many of those threatening to move staff away are scaling down their estimates—Deutsche Bank, for example—and the governor of the Bank of France has stated that the numbers leaving are exaggerated. Even the chief executive of Barclays is telling us to be prepared to sacrifice access to the single European market after Brexit if it means gaining control of our own financial rules.
The more that we argue here, the weaker we make the Government’s negotiating position. Should we not be implementing the people’s vote, unelected as we are, pulling together and presenting a united front? By all means improve the Bill before us, but let us not frustrate it.
My Lords, I think plenty of your Lordships will share the view that the one country we would not wish to be disadvantaged as a result of Brexit is Ireland. However, Ireland is already suffering: beef exports have fallen as a result of the collapse of sterling. Sadly, it is Ireland that is most likely to suffer in the coming negotiations.
Had there been no progress with Ireland and Northern Ireland, we could well not be having this debate at all, or at least in this context. Noble Lords will appreciate that in the early stages of the negotiations last year the EU adopted an inflexible approach: no deal between individual members and the UK. It was described dismissively by Charles Moore in the Daily Telegraph as Euro-theology. Talks were indeed in danger of stalling and stage two was in danger. With the determination on all sides to have a soft border, how could regulatory bodies be shared with the EU on the one hand while Northern Ireland was placed apart from the rest of the UK on the other? This has been stated by many speakers but I refer particularly to the speech yesterday by the noble Lord, Lord Patten of Barnes.
Thanks to the constructive efforts by UK, Ireland and Northern Ireland officials and the Barnier team, a form of words was agreed that I suggest is a drafting masterpiece. I am going to take the opportunity of reading it:
“In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market”.
If it is not entirely clear, perhaps that is intended. Naturally, the type of confectionery beginning with “f” shall not pass my lips; I would call it constructive vagueness.
The Prime Minister and the Taoiseach have both made statesmanlike speeches, the Taoiseach in particular emphasising the bonds between the two countries. It has become known as the
I am a member of the British-Irish Parliamentary Assembly, formed as a meeting group for Back Benchers of both jurisdictions, and we have come a long way since the troubled times of the 1990s. Now it is a constructive and friendly group where we can agree to differ on Brexit, with frankness, without rancour or confrontation. It is particularly important at this time, when there is no devolved Administration in Northern Ireland. But I must emphasise that, with all the friendliness and mutual understanding in this group, Ireland is totally committed to the European Union. In the United Kingdom’s future dealings with Ireland over Brexit, friendly and constructive though we hope they will be, it is vital that this is borne in mind.
My Lords, I greatly regret the fact that we are debating this Bill, as I believe that we should remain as a member of the European Union. I did not think it was right to have a referendum about an issue of such complexity. Indeed, in a parliamentary democracy most referenda are inappropriate.
For many years we sought to be a member of the EEC, as it then was. Having joined, it brought us many benefits, the greatest of which has been our membership of the single market. Our economy has flourished so that we have enjoyed higher growth than before and a strong position relative to other OECD countries. The decision to leave the EU is already jeopardising this, as the Governor of the Bank of England and many others have made clear. Yet a former senior Minister who supports Brexit was heard on the “Today” programme yesterday in denial about Government projections of an economic downturn under each of the three models of possible outcomes. What he said was shockingly misleading. I hope that when the Minister replies he will confirm that impact assessments will be made available to Parliament. I hope too that there will be no more disgraceful attacks on civil servants like the one we heard in another place from the Minister in the Brexit department. If these go on we will have to start a defence league for officials.
It is not only because of the economic consequences of leaving the EU that the UK would be better off inside than outside. There are many advantages in being part of a political bloc whose members share our commitment to the rule of law, democratic institutions, freedom of speech and human rights. In a troubled world where there are powerful countries that respect none of these, there is great benefit in working together in Europe to secure peace and justice in the world. We should not forget the views of young people: they voted overwhelmingly in favour of remaining in the EU. They are now puzzled about what constitutes government policy. This is hardly surprising since the Government themselves have no vision or clarity about where they are going. Above all, young people fear a hard Brexit and that we are abandoning the values of tolerance and openness that they hold dear. Old people, who voted in large numbers to leave, have most of their lives behind them. Young people have most of their lives before them: we must not let them down. To pass the Bill unamended would let them down.
We must ensure the sovereignty of Parliament and prevent a constitutional outrage. The House can play a crucial role in protecting our constitution by seeking to prevent an over-powerful Executive bypassing proper parliamentary scrutiny. Legal expertise in amending the Bill’s Henry VIII clauses will be invaluable. The Government’s decision not to convert the EU Charter of Fundamental Rights into UK law means the protection of human rights will be weakened. More than 20 human rights organisations, including the Equality and Human Rights Commission, recently published a letter stating that losing the charter creates a human rights hole. The protection of the charter should be retained. Without it, there are risks to employment rights, consumer protection, the protection of the environment and the rights of children.
I also want to comment on the absurd decision, forced by the hard Brexit faction in the Government and the Conservative Party, to have a precise date for leaving the EU next March. This comes before many of the vital decisions that need to be made about the consequences of Brexit have been properly discussed and negotiated. I hope the Government will think again and consider leaving only after the transitional period, rather than before it.
The calamitous decision to leave the EU has distorted the work of Whitehall and Westminster, leaving insufficient time to address many urgent issues where change and reform are needed, whether in health and social care, education, housing and the environment, or the reduction of poverty. Moreover, this displacement of effort is magnified by the loss of many benefits brought to us in all these policy areas by our membership of the European Union. Leaving will make it exceedingly difficult to retain many—if not any—of these benefits. However, I end by saying that our greatest priority must be to fight against a hard Brexit and the horrors of renegotiating all our trade agreements. We must stay in the single market and the customs union for the sake of the Good Friday agreement, and above all for the sake of the prosperity of our nation.
My Lords, even if I was not a culturally pro-European Londoner who considers that Brexit will damage the future of my children and grandchildren, I would regard the Bill as seriously flawed. I accept totally that EU withdrawal requires legislation that ensures legal certainty and continuity the day after we exit. My problem with the Bill is not its purpose but its cack-handed approach to executing that purpose, as the Constitution Committee has forensically exposed.
The Bill neither achieves legal certainty nor upholds the sovereignty of the UK Parliament. Indeed, in its present form it diminishes that sovereignty. The Government have chosen to ignore the warning they were given last September by the Constitution Committee about the unsatisfactory nature of the Bill’s approach, when in an interim report it said:
“The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government”.
The Government simply did not deal with these matters during the passage of the Bill in the Commons, despite the valiant efforts of a former Conservative Attorney-General and others. The Bill remains a constitutional mess despite all the discussions in the Commons recorded in the pages of Hansard, which are now said to exceed the length of War and Peace. Yet a dozen or so crisp paragraphs in the Constitution Committee’s Report—paragraphs 40 to 52—explain the fundamental flaw at the heart of this Bill: the failure to attribute a single legal status to all retained EU law. It is that failure that produces many of the ambiguities and confusions and the convoluted legal drafting running through the Bill.
But that flaw is not the only problem. If we leave this confused and confusing Bill in anything like its present state it represents a clear and present danger to parliamentary sovereignty, to the entrenched rights and protections that UK citizens have under the existing blend of EU and UK law, and to the devolution settlements with Scotland, Wales and Northern Ireland, as so many speakers have identified. Clause 6 creates obscurity and uncertainty around how the courts are to use EU case law after Brexit. The Bill casually dumps the European Charter of Fundamental Rights with no clear justification, as the Constitution Committee points out. The scrutiny arrangements for delegated powers remain inadequate, without a proper role for this House. As others, particularly the noble Lord, Lord Hain, have made clear, the Good Friday agreement remains in jeopardy from the Government’s fantasy that you can have a frictionless border in Ireland without a common customs union.
Fortunately, the Constitution Committee’s report provides analysis and solutions. Paragraph 52 proposes a straightforward solution to the fundamental flaw, namely that the legal status that should be applied to all retained direct EU law for all purposes should be the status of domestic primary legislation. This approach would secure legal certainty and continuity post Brexit, remove swathes of Henry VIII provisions and simplify the Bill significantly. The report’s summary of conclusions and recommendations are, I suggest, 65 paragraphs of good sense that the Government would be wise to embrace. But will they?
During the passage in this House of what became the ill-conceived Health and Social Care Act 2012, David Cameron paused the Bill to try to sort out the mess that the Government had got themselves into. This Government would do well to consider doing something similar with this Bill, drawing on the Constitution Committee’s report and using all-party talks. Perhaps the Minister could indicate whether the Government have any appetite for such an approach. If, however, they choose to dig in for minimal change, it will fall to this House to tackle robustly the many constitutional problems posed by this Bill. We should not be deterred from doing so by any internal or external threats and rants about thwarting Brexit or the will of the Commons. After all, many Members of the House of Commons expect and want this House, with its knowledge and expertise, to sort out the Bill’s defects. It is in the national interest that we do so.
My Lords, sport and sport-related activity contribute some £20 billion of GVA and 400,000 full-time equivalent jobs. It therefore makes a greater contribution than such sectors as the sale and repair of motor vehicles and accounting. Yet a great deal of the sports policy framework under which the EU operates is based on a global lex sportiva, to which sport has to have due regard. This requires agreement with international and national federations that govern the rules of sport and approve government-to-sport relationships. The proposal to move existing legislation from the European Union into the framework of this Bill will be fraught with difficulty because it does not take into account lex sportiva or the international and national federations.
Let me give noble Lords some examples. Take the Kolpak rule, the loss of which would mean that players from countries which have an associate trade agreement with the EU would no longer have the same rights as UK players. Currently, the Kolpak rule applies to those players who hold an EU passport, who are married to an EU or EEA national, or who come under the Kolpak ruling. These players are not currently classified as foreign, and that is recognised in the quota system used by professional sports in the United Kingdom. Governing bodies such as the RFU, which has the responsibility for issuing endorsements to rugby union players outside the EU and EEA, have stated that they cannot even look at their regulations regarding overseas players until the terms of Brexit have been confirmed. This causes uncertainty for clubs signing multiyear contracts, and currently affects 72 eligible players. Another example is the Cotonou agreement, a treaty between the EU and a group of states including South Africa, Fiji, Samoa and Tonga, whose rugby players could, at present, play for a British-based team and not count towards the foreign player quota.
Without membership of the EU, the Kolpak rule goes. Saracens, which has 14 such players, could be particularly hard hit. Cricket, through the ECB, has also said that it is waiting to hear from the Home Office. Have the Government reached agreement with the relevant governing bodies of sport as well as with the EU? Uncertainty destabilises the market. Cricketers are working under the assumption that any deal signed before the end of 2017 will not be affected by Brexit, but will they?
Article 19 of the FIFA regulations on the status and transfer of players internationally is currently limited by FIFA to those over the age of 18. However, there is an exception within the territory of the European Union for players aged between 16 and 18. Post Brexit, this exemption would no longer be available for British clubs. We have 70 players in this category and who would be ineligible, thus denying us an important pipeline of young talent and putting us at a disadvantage to European clubs. Yet as part of lex sportiva, it is FIFA and the EU that must decide. What discussions have the Government had with FIFA to secure the continuation of the exemption, the loss of which would hit the lower league clubs particularly hard?
Will the Government clarify the impact of EU state aid legislation, which prohibits member states from favouring one market participant over another? Do the Government intend to transfer these restrictions into UK law or, as I hope, allow for new rules to open up the potential for public bodies to subsidise stadium developments and other major sporting infrastructure projects? That would be far reaching.
Finally, given that the free movement directive would no longer apply and migration of EU nationals would become subject to UK law, do the Government intend to subject the same rules that currently apply to individuals outside the EU and the EEA to football clubs throughout the United Kingdom? If so, 332 players would not meet the current requirements that non-EU and non-EEA players must meet. Will every athlete with current citizenship in one of the EU or EEA membership states require a work permit? The Chancellor, Philip Hammond—whose view on Brexit, incidentally, I totally endorse—stated that there was no likelihood that new immigration controls would apply to highly skilled and highly paid workers. Will the Minister confirm that all professional footballers, including in the lower leagues, would fit into that category? Will the Government confirm that post-Brexit the Bosman ruling will no longer apply in the United Kingdom?
The consequences for professional sport flow through to the amateur ranks. The House has an excellent record of influencing sports policy. Only yesterday—and I thank them—the Government had clearly listened to the close vote on the future role of the UK anti-doping agency during the GDPR votes shortly before Christmas, giving UKAD a welcome extra £6 million over two years and promising to revise its powers by September. Delegated powers to modify retained EU law—not just to correct it, but to make substantial new provisions and remedy changes to our international obligations—will be urgently required if we are to protect the competitive position and the future success of the sports sector in this country, which I believe is critical.
My Lords, since the referendum this nation has been on a rather incredible journey. Our learning curve has been huge; at least for most of us in Parliament, certainly for me. There are ideologues who do not want to listen to the fine detail about anything, but there cannot be many of us who have not discovered through debate, conversation or the media that the strata of connections and collaborations between the nations of Europe run very deep and to the benefit of us all.
I find myself repeating, “if only”. If only the national debate before the referendum had been as rich in information. If only people had known just how much poorer this rupture will make them and their children. If only they had seen how it would diminish us as a nation and reduce our power in the world. If only people had known about the damage to our constitution that the referendum would unleash, with all the talk of “the will of the people”, forgetting that we live in a representative democracy and that that will is expressed through having representatives in Parliament, precisely because they immerse themselves in the complexity of issues.
If only there had been a proper debate about cross-border trading always requiring an overarching international court of some kind. All the bluster about wanting our own courts to decide everything that affects us did not deal with the fact that if you trade with Poland the Poles are not going to settle for a UK court deciding the outcome of a dispute. The World Trade Organisation, out there in the great blue yonder to which Brexiteers aspire, also has its own court to deal with disputes. Norway and its little grouping in their semi-detached relationship with Europe had to invent the EFTA Court for precisely that reason.
If only people had been truly informed about the high level of medical and scientific advances—the creation of medicines and cancer remedies—that are made because of experts working closely together. There are the benefits to our universities in advancing knowledge and understanding. Defence and security collaborations prevent conflict and crime. There is consumer protection. There is the risk now to peace in Ireland. Was it ever fully explained that the customs union was key to a borderless Ireland?
If only we had not had a slanging match but instead had grown to understand the extent and benefits of the financial and trading relationships that flowed from our membership. If only we had spoken softly about how important it is to work with our closest neighbours because it stops wars and that together we can keep a check on the rise of extremism. With neighbours, there are inevitably aspects of the connection that grate on us and which we would like to change, but that should never be the reason for pulling up the drawbridge.
I am a lawyer, and because of the nature of my practice I am all too aware of the incredible advantages of Europe, Eurojust and a European arrest warrant. The underbelly of markets is black markets, and today they cross borders. We have trafficking in drugs, arms, fissile material, body parts, human eggs, babies, and women and children for sex and domestic servitude. You cannot deal with that kind of crime without close collaboration and developed mechanisms, and these require reciprocity and a level of legal harmony.
A few weeks ago, the House of Lords Committee European Union sub-committee on justice issues, which I chair, heard from a very distinguished judge on the EFTA Court. He had been its president for 12 years and had sat on it for years beforehand. I asked him whether we could be part of the Euro-warrant system—EFTA is not part of that system—without the European Court of Justice. His answer was no.
So how are we going to collaborate on all these issues of crime? Legal processes affecting families, individuals and businesses are reliant on essential regulations that have been very successful and to whose creation we have been party: Brussels 1, Brussels 2 and the maintenance regulation. A woman married to an Italian can go to her local court and get an order if he shoves off back to Italy and is not paying maintenance for his children. A company that suddenly has a default from its trading partner in Poland can go to a court in Middlesbrough and get an order that will be effective over there. That is done because of mutuality, and it is reciprocal. I fear that bringing law in here, nailing it down and saying, “We are introducing it”, does not deal with that reciprocity. We are going to have to have 27 separate relationships in order to make it happen.
The Henry VIII powers still have not been adequately constrained in the amendments that passed in the Commons, and I am very concerned about what the implications will be for the rights of individuals in this country. We have been given an account that employment rights will not be eroded. I am afraid I do not have much confidence in those promises because we know that a section of the Conservative Party is very keen to deregulate and remove employment protections around the working time directive, the agency work directive, pregnancy protections and so on. Across the whole of Europe there is a European protection order to deal with violence against women and girls. Did your Lordships know that? Of course not; most people do not.
What about the promise of meaningful debate at the end of all this? There has to be a clarification about the options that will be available, because one of the options has to be to remain. I hope the amendments will nail down some of these problems. I am most concerned about the excision of the Charter of Fundamental Rights from the Bill. That should set alarm bells ringing because it is telling us that rights are not a high priority for this Government.
It is hard for people to change their minds, but with more complete information people do so. We do it in our daily lives. I will deeply regret it if we do not put information clearly in front of people. I am not going to settle for a bad deal, and if that means a second referendum then noble Lords can count on me being behind it.
I heartily endorse everything that the noble Baroness, Lady Kennedy, said about the reciprocity of the law across Europe, particularly in the field of crime and the pursuit of criminals, but I wish to focus on the devolution provisions in the Bill.
Clause 11 is agreed on all sides to be defective and in need of amendment. The Government promised to bring forward an amendment on Report in the Commons but failed. I think we all assumed that negotiations were going on backstage with the devolved Administrations, but that was not the case. We were told in a meeting on Monday with Mark Drakeford of the Welsh Government and Michael Russell of the Scottish Government, in the presence of the relevant government Ministers, that they had not been consulted on the proposed amendment to Clause 11 at all. We do not want to be presented at some stage in Committee with a government amendment that has been drafted without even consultation with, let alone the agreement of, Cardiff and Edinburgh. What would we do with it? The whole point of the exception taken to Clause 11 is the lack of consultation and the evident incomprehension of the principles of devolution by Ministers. Both Cardiff and Edinburgh, with the full support of every elected member of every political party, rightly conclude that, as currently drafted, Clause 11 and Schedules 2 and 3 put all the cards in the hands of Westminster.
The proposal in the Bill is that the UK Government will dictate, with no requirement for consultation or agreement, how the powers repatriated under retained EU law should or should not be parcelled out to Cardiff, Edinburgh and Belfast, even in areas of policy where the devolved Administrations have full and exclusive competence. Not only that, but UK Ministers are given power to alter not merely the Scotland Act and the Government of Wales Act but the existing legislation passed by the Scottish Parliament and the Welsh Assembly—and by ministerial decree, through statutory instruments and Orders in Council. Welsh and Scottish Ministers have no such powers.
The noble and learned Lord, Lord Hope, described the architecture of the Bill as misguided and ill-informed, and my noble friend Lord Newby described the Government’s approach as a combination of arrogance and incompetence. Nowhere are these descriptions truer than in this mishmash of the devolution settlements.
The powers repatriated from Brussels will include funding and policy-making in many fields. For example, take the European Regional Development Fund and the European Social Fund. Brussels has parcelled these out across 28 member states on the basis of need. In the 2014-20 European budget; Wales benefits by over £2 billion. With matched funding; a total investment of £3 billion is available to the Welsh Government to support people into work and training, on youth employment, research and innovation, business competitiveness, renewable energy and energy efficiency, and connectivity and urban development. All these are fully devolved competences for the Welsh Government.
But the much-criticised and hoary old Barnett formula, which is the current Westminster vehicle for funding Cardiff, Edinburgh and Belfast from UK Government sources, is divided not on the basis of need but on a simple population head count. Under the provisions of the Bill, there would be nothing to prevent Ministers, by statutory instrument and without the consent of the devolved Administrations, departing from the Brussels basis of need to the Barnett model of population count. English politics and English interests are bound to be engaged in funding decisions. After all, in the policy areas devolved to the devolved Administrations, Westminster and its Ministers act as an English Parliament. English interests are going to intrude.
All are agreed that there will be a need for new UK frameworks, but the Bill hands all the power to UK government Ministers. They will be able to dictate to the suppliant and powerless devolved Administrations whatever frameworks they think “appropriate” in whatever fields they choose.
The Bill cannot be chuckled through this House as David Davies is trying to chuckle his way through European negotiations. Someone in this Government has to take a grip, to make decisions and determine both a destination and a course to get there.
Step 1: the devolution proposals in the Bill have already failed the test and there is no time while the Bill is in this House to go through with it. They should be extracted from the Bill forthwith. Clause 11, Schedules 2 and 3 and any other related provisions should be taken out of the Bill.
Step 2: the Government should demand from their DUP supporters that in return for the £1 billion bung they have been given, they should make the compromises necessary to revive the Northern Ireland Assembly and Executive. If Paisley could sit down with McGuinness, the current DUP leadership owes it to their countrymen to do the same.
Step 3: the Government should negotiate with the devolved Administrations on the basis of parity of esteem and respect for the devolution principles. They should agree the areas for the new frameworks that will be required.
Step 4: they should bring forward a new Bill on an agreed basis, with legislative consent orders ready to go. These current provisions are not fit for purpose.
My Lords, many Peers here and many Members in the other place have referred to this as a technical Bill. In its current state, it is anything but a technical Bill, because it has serious implications for our constitution and for our system of democracy. We should recognise this.
Since the referendum, we have heard a great deal of the need to respect the democratic mandate which the result provided. The people voted, albeit by a narrow majority, to leave the EU, and it must therefore be right that their decision is implemented. This is a moment for us to reflect on and respect the foundations on which our democratic system has been built, not to ignore them. For example, our system has within it a series of checks and balances which ensure that political leaders, once elected, cannot do as they wish without challenge, or without the need to transparently justify their actions and to be accountable in the long term. These checks and balances are never more important than when a policy is controversial or is the subject of the kind of passionate feelings that many politicians demonstrate for Brexit.
Theses checks mean that departmental accounting officers have the right to seek directions; that this House has the right to scrutinise and challenge; that the National Audit Office, which I chair, has the right not just to audit public bodies but to investigate and report on value for money and propriety; and, of course, that the judiciary has the responsibility to judge whether or not the law is being respected. These checks are not, as some seem to believe, irritating evidence of a determination to undermine democracy, but central tenets of our democratic model. We should treat them as such, cherishing and embracing them, because true democracy recognises that the best decisions derive from an exchange of opinion. As the noble Baroness, Lady Smith, said yesterday, some decisions are too important to be left to those who have no doubt.
As many Peers have said, our particular democracy has also placed limitations on the power of the Executive to make substantive changes to law by way of secondary legislation. However, the Bill before us specifically gives Ministers the right, via the correcting powers in Clauses 7, 8 and 9, to amend primary legislation by statutory instrument. For example, Clause 7 sets out the powers for Ministers using secondary legislation to amend or undo any EU laws they claim are not operating effectively or are suffering from any other deficiency arising from the withdrawal. The vagueness of these definitions gives Ministers unprecedented discretion, which strikes at the heart of our democracy.
Many people who voted for Brexit did so because they felt ignored and that they had lost control of their destinies. They did not vote for Brexit in order to give Ministers unbridled powers to take away their fundamental rights. The Government belatedly seem prepared to make concessions on this issue, but I am by no means yet convinced that these go far enough. The way in which these concessions have been offered—with apparent reluctance and so late in the day—does little to reassure me that the importance of this issue for the sovereignty of Parliament has been understood. This view was reinforced earlier by the noble Baroness, Lady Kramer.
Our particular democracy is also defined by the way in which we provide access to fundamental human rights—the right to education; the right of older people to lead lives of dignity and independence; the right to protect personal data, and the right to conscientiously object. But by excluding the European Charter of Fundamental Rights from retained EU law, the Government have called into question our commitment to those rights. They have created confusion at the very time when clarity is needed and they have diluted the domestic protection available to those who feel that they have been denied access. Our determination to create a society that recognises and values these fundamental rights, and that genuinely strives to turn the aspirations into reality, is what has given our democracy its meaning and purpose. We should never dilute our commitment to those rights or even give the impression that we are doing so.
Our future is not just about whether we remain part of the EU, as some seem to believe. As the right reverend Prelate the Bishop of Leeds said yesterday in what I thought was a wonderful speech, we need to ask ourselves what sort of Britain we want to inhabit. Who do we think we are? What do we live for and what are we prepared to die for? For me, and I suspect for many others in this House, the answer lies in the democratic system we have built down the years and in the fundamental human rights that many of us have sought to enhance and protect during our lives. The withdrawal process must never be achieved at the expense of those core values. There is not now, and I hope that there never will be, a mandate for that. We in this House need to have the courage to amend and improve this flawed Bill, not to frustrate democracy, but to protect it.
My Lords, that is a difficult speech to follow. It was powerful. I am very glad that the noble Lord concentrated on what the right reverend Prelate the Bishop of Leeds said yesterday, because that was a very challenging intervention as well. He talked about the issue of who we are, what kind of Britain we want to be and what kind of world we want to try to play our part in creating. I will add only one other issue alongside those. For me, it is an absolutely inescapable truth that from the moment we are born we are locked into an interdependent global community. The way we shall be judged by history is by the success we make of finding ways to meet that reality and to build institutions and methods of intergovernmental co-operation that enable us to face it. Climate change is a great example; security is another.
We have heard a great deal about the importance of the constitution. It is quite clear from this debate, if in no other way, that referenda and representative parliamentary democracy are not easy companions. I have always held that we in Parliament are the practitioners as well as the representatives, but that the constitution belongs to the people. From my experience of what we have been through in recent years I have come to the conclusion that the rare case for constitutional change to be proposed is in the context of a general election. That is a way to bring the whole system together, but we seem to have been busy building dual systems and then telling Parliament that its function is to deliver what comes through a referendum. That makes a nonsense of the concept of dynamic representative democracy. That is why the debate, discussion and search that goes on in processing the Bill—not the Bill itself; we have heard too much about how the Bill is important—is vital to our parliamentary heritage. It really will not do for Ministers to keep lecturing us on how our job is simply to get it through. It is not. It is to make sure that what it is doing is compatible with everything that this country has stood for.
Human rights are, of course, central to that. I have the joy—I think that is the right word to use—of serving on the EU justice sub-committee, which my noble friend Lady Kennedy chairs. She spoke very powerfully about those issues today.
There are two issues that I would take above all others. The first is that the concept of citizenship matters deeply. By our referendum, we have removed European citizenship from countless numbers of people who thought they were enjoying what citizenship meant. That is a very grave thing to have happened. Therefore, one of the things that we must do in our deliberations in this House is make absolutely certain, if it can be done, that we have arrangements in place that will meet the challenge of restoring the rights that people thought they had.
The other issue is the European court. I have been horrified and dismayed in the work of the justice committee to hear and see more and more evidence of the gap between myths, rhetoric and populism on one side and reality on the other. Almost without exception, witness after witness to whom we have listened has said how indispensable the European court is. Over and over again we have been given examples of the key part played by British lawyers in developing and strengthening European law—it is a tragedy that the British people do not understand this and have not been led to understand it. We are living in an interdependent world and we wanted to be part of an interdependent Europe. That required strong law in Europe and the British have been playing a huge part in that, so what are we doing walking away from it?
Whatever happens on the Bill, and I hope we will have some very demanding and searching debates, I hope we remember—to come back to the intervention yesterday by the right reverend Prelate—that we cannot escape from being members of an interdependent world. Our children and grandchildren will ask what we did towards devising the policies and arrangements to meet the challenges of an interdependent world or whether we walked away in the opposite direction with a preoccupation with what was immediately popular.
My Lords, the noble Lord, Lord Judd, is right to comment and demand that citizenship is vital. I say that with some feeling because my grandparents came from Germany in 1913. They were about to get British citizenship but they did not achieve it. They were sent back to Germany but, thankfully, reappeared after the First World War, so I guess a quarter of my blood is German.
I have been pro-European all my political life. I joined the Young European Managers’ Association, along with my noble friends Lord Wakeham and Lord Vinson. We campaigned as young professionals to encourage the country to join Europe, and of course success was achieved. Just after that success, we had the 1974 election.
I campaigned in that election in Northampton, a marginal seat that had been Labour all its life, where I won by the princely majority of 179, thanks, I think, to the Europeans in that constituency who supported me. When I got to Parliament it was in the period when we had dual-mandate Members of the European Parliament; in other words, they were elected to our Parliament and also sat in the European Parliament. Then we had elected MEPs. Somehow, somewhere in that period, from 1974 through the years, there was the beginning of disillusionment. Then we had the 1997 election. I had been in the seat 23 years, in a marginal seat, and I had a Referendum Party candidate purposely put up against me. At that point I was Chairman of Ways and Means and not able to campaign very much and I lost by a few hundred. So Europe has been very important to me.
If you sit in a marginal seat you have to learn to listen. In this case I suggest to your Lordships that we now have to listen and accept the practicality of what has happened in the referendum. I voted to remain—that does not surprise anybody—but I do now listen deeply to industry, commerce, trade and, above all, the City, to ensure that we look after their interests. We have to accommodate both what the majority of people wanted and these key dimensions of our society. I do not need to explain the Bill to anybody here, but as I understand it we are transferring European law into UK law. I am not a lawyer, but it needs to be done in a stable and orderly way.
I had the privilege of handling the Maastricht Bill in the other place. I had a good team that worked with me and the first decision we took was to call in all the sides that had strong views about Maastricht, listen to them and decide what could be agreed before it got on to the Floor of the House and what could not be agreed. One of the problems, I suggest to your Lordships, is that we do not have a similar procedure here. We have a very good Constitution Committee, no doubt, but I believe, having read its report, that it leaves an area of confusion. Certainly, not all of its proposals are terribly practical. That is where we come to the problem of Henry VIII clauses. I do not think it is practical to have all these challenges in primary legislation: it is just not practical and if it is not practical, we need to ensure that there are safeguards. That, I believe, is vital.
There are three large areas of discussion. Should the Executive have power to accept the final deal without Parliament having a vote or, indeed, the people having another vote, or should there be further votes for Parliament en route? We must recognise that any Government has to govern and give the leadership that we, the people, want. I share the view that it is a great pity that the Cabinet today seems to be riven by various factions: that is not what I want to see in my Government. Secondly, everybody that has contributed has made it clear that this is all about the future of our nation. I, for one, am not in favour of a second referendum.
The challenge, though, is not just a constitutional one. We have to accommodate trade, industry, commerce and the City because they are so vital to our economy, to employment and to standards of living. There are trade deals out there. I know quite a lot about Asia. I have visited many parts of Asia, both as an executive and as a politician. Frankly, it is not good enough at the moment to be appointing MPs as trade envoys. That is second-hand. We need experienced negotiators out there with specific experience of those markets to produce future trade deals that will enable us, a single country, to trade extensively and successfully.
I finish with two quick points. I want to say on the record thank you to those who are doing the negotiating for us. To all those civil servants and politicians, I say a big thank you. At this point, frankly, our nation wants inspirational leadership and a goal that we can all sign up to. This is a time for a united Cabinet to decide what we really want, what we think we can get from Europe and what we can offer in return—not just in EU terms, but to defence, culture and so on. Do this, and the country will respond.
My Lords, the Bill before us is a dog’s breakfast. In my view, it is inevitably so, for the reasons touched on only a few minutes ago, first by the noble Lord, Lord Bichard, and then by my noble friend Lord Judd; namely, it was obliged to spatchcock parliamentary sovereignty and procedure with plebiscitary democracy. As my noble friend Lord Judd said, the two do not fit. That is why there are several examples of where we are struggling, such as the Henry VIII powers and the interface with the devolved Administrations.
There is, however, one novel feature in the Bill, which came in a late amendment in the House of Commons that was, I think, carried by four votes: Clause 9 provides that Parliament shall consider the outcome of the negotiations. I wish to develop a point made by my noble and learned friend Lord Falconer of Thoroton, concerning whether there needs to be a mandate at the start or at the finish. As a TUC official for many years—the TUC is accountable in innumerable ways—it strikes me that one does not go into a negotiation without first determining some basics about what one wishes to achieve; in other words, the remit or the mandate. If you do not have a mandate, the union executive will, when you get back, say that you did not achieve what you were asked to do. So, first of all, you have to define something about your priorities and, secondly, you have to make them less than extravagant or else you will come back looking foolish. HMG have done none of that.
We saw an example of that at Lancaster House. Not only was that speech not a parliamentary presentation, it was simply a glorified press conference, where the fourth estate replaced Parliament. It is not just that it was not adopted and ratified by Parliament; it was not even put to Parliament—I do not think any parliamentarians were invited. What was said at Lancaster House was certainly not a road map that Monsieur Barnier or anyone else across the channel finds helpful at all to the negotiations.
Taking my trade union analogy one stage further, I want to talk about a parliamentary mandate, which we need to include. That will be the essence of an amendment on the remit—namely, having a mandate at the outset of the negotiation and not just a vote at the end—which will complement the Commons amendment. Some of us hope to table that amendment with the Public Bill Office tomorrow, and later we will put some flesh on its bones. Whether this is helpful to the Government depends on whether Boris Johnson and Philip Hammond can be joined at the waist like Siamese twins—we will have to wait for the results of that little exercise.
When it comes to the negotiations, something is very clear. If you look around at all the think tanks within two or three miles of here, you will find they all acknowledge that there are five options. The first is full divorce; the second is free trade with no express alignment and some trade-offs; the third is pick-and-mix on free trade with greater alignment in particular areas; the fourth is associate membership, which roughly means the EEA—I will come back to that; and the fifth is adjusted membership, with EU law directly applicable. I think we will probably come down on number four, but I thought I would simply set out the menu.
The last three of those options involve free movement, give or take specific tests of different types that can be defined. Number four would tie in with a deal done on the island of Ireland. I noticed the other day that the EU Council is now insisting in public that the
There is no point in disguising the fact that I am for the European Economic Area, which is the only option outside the EU that enables us to retain participation in the single market, the four freedoms and so forth. However, that means something like a beefed-up co-ordinating committee within the EEA twin-pillar structure between the two sets of Councils of Ministers.
In my concluding sentence, I want to say a word about workers’ rights and the TUC. Frances O’Grady made the point the other day that, if we are not careful, the Bill could open Pandora’s box and that workers’ rights are at risk. If we are talking about workers’ disillusionment with the whole of this exercise, then it is very important that we get a guarantee that that cannot happen.
My Lords, I declare an interest as chair of the Hansard Society, whose briefing has been very helpful in considering the Bill, as has the excellent report from the Constitution Committee. I very much look forward to seeing the imminent report of the DPRR Committee later this week. The Bill represents a massive transfer of authority away from Parliament to the Executive, and such a transfer requires proper constraint via proper parliamentary scrutiny. The question is how Parliament might best secure reasonable oversight and scrutiny of this flood of delegated legislation without frustrating the purpose of the Bill.
Previously, Parliament has insisted that a strengthened scrutiny procedure be inserted into Bills that grant Ministers wide delegated powers: the super-affirmative procedure in the case of LROs; the enhanced affirmative procedure in the case of the Public Bodies Act. There is no such procedure in the Bill, and that is a very serious defect. The Bill adds a novel procedural element to the SI process. It sets up in the Commons a sifting committee to examine all negative SIs, and it will have the power to recommend an upgrade to the affirmative procedure. It can only recommend, though, and that is not sufficient; the committee should be able to require an upgrade. We will want to address this as the Bill proceeds. The Bill contains nothing about how the sifting committee is to arrive at its decisions, and we will want to make good that lack. The Bill proposes a sifting committee only in the Commons. I was glad to hear the noble Baroness the Leader of the House promise to correct that and deliver an equivalent for this House. If a sifting committee in either House decided to upgrade an SI, that should be binding upon the Minister.
I think it is generally acknowledged that Commons scrutiny of SIs leaves much to be desired, but that scrutiny process is left unchanged by the Bill. Sifting is not scrutiny. As usual, detailed and thorough scrutiny will take place in our House, where existing procedures require us to say yes or no—we cannot amend. We will of course be reluctant to invite more visits from the noble Lord, Lord Strathclyde, by exercising frequently, or at all, what may be called the nuclear option. But we should not allow unsatisfactory SIs to grant unsatisfactory powers to the Executive. It would be better to introduce a new power to return an SI to the Commons for reconsideration—a proposal recommended by the noble Lord, Lord Strathclyde in his report.
It is not just the scrutiny procedures in the Bill that are inadequate, but their scope as well. For example, SIs generated by Clause 17 are not subject to the sifting mechanism, and they should be. There is also the Solicitor-General’s declared intention to use SIs deriving from existing non-Brexit-related Acts to make changes to retained EU law. These SIs need to be brought within the strengthened SI procedures in this Bill. There will be SIs generated by other Brexit Bills. We want all of them to be scrutinised as though they were generated by this Bill. For example, Clause 2 of the Trade Bill contains a negative procedure power to amend retained EU law where that law has the status of primary legislation. The safeguards in the EU withdrawal Bill are absent from the Trade Bill. We will want to change that.
We will also want to look at the urgency provisions in this Bill. As things stand, there are no constraints on the exercise of the “urgent case” power in Schedule 7. Under this power, Ministers can lay a made affirmative instrument which will remain in force unless annulled within a month. We understand why the urgent case power may be needed, but we will also want to understand why in each case. We will require the Minister to explain and justify the use of the urgency power. We will also need to provide safeguards on the use of this power, including defining limits on its use and perhaps involving the sifting committees.
The Bill at least contains sunset provisions. These are for the SIs themselves, not for whatever is enacted via them. It would be impractical to impose a sunset provision on these enactments, but that does not mean that they should not be reviewed. For primary legislation, the Government have to produce a report for Parliament within three to five years of royal assent. We see the case for a similar provision for legislation enacted by withdrawal-related SIs.
This Bill grants Ministers exceptional powers but does not provide for effective scrutiny. That is very dangerous for the quality of the legislation and for the authority of Parliament. I hope we will be able to reduce these dangers as the Bill progresses.
It is a pleasure to follow the noble Lord, Lord Sharkey, and so many other colleagues across the House in this monumentally important debate. I have always been proud to be British and believe the UK’s amazing achievements have been magnified by being a gateway to the rest of Europe. Free markets across the Channel and our integrated industrial operations have enhanced our performance on the global stage. One-fifth of the UK supply chain is located inside the EU. I firmly believe our multicultural diversity has made Britain a vibrant beacon of tolerance, decency and mutual respect, harnessing home-grown and overseas expertise to the benefit of ourselves and the wider world. We must not throw this away.
Churchill spoke in his 1951 speech of the disadvantages and even dangers to us in standing aloof. He understood the perils of obsession with national sovereignty. It is a troubling sign of our times that anyone suggesting amending this Bill may be accused of wanting to frustrate the will of the people. That is nonsense. Parliament has respected the result of the referendum. It has triggered Article 50—albeit perhaps before we were ready—and is now trying to negotiate a good outcome for the whole United Kingdom from a new UK-EU relationship.
This Bill is supposed to be about providing certainty for the future and, most particularly, about our constitutional arrangements and legal framework after we transfer all EU-derived law into UK law as a result of Parliament’s respect for the 2016 referendum vote to leave the EU.
Some key issues of concern with the Bill have already been brilliantly exposed by previous speakers. It is our duty to scrutinise the legislation before us, which raises fundamental issues that go to the heart of our constitutional framework and parliamentary sovereignty. I do hope that my noble friend will listen carefully and relay these concerns back to his department, so that they can be addressed in government amendments.
First, on the Henry VIII powers, this House cannot rubber stamp giving authority to the Executive that would normally be the role of Parliament as a whole. The amendments to Clause 7 introduced in the other place are insufficient to prevent parliamentary democracy being subverted by Ministers. As my noble friend Lord Balfe rightly said, how would we on these Benches—or indeed many on the Benches opposite—feel about handing such sweeping powers to Jeremy Corbyn? We must not allow the Bill to water down hard-won rights, for women, workers, the disabled and minorities that people in this country have relied on.
I share the concerns expressed by so many noble Lords about Northern Ireland. The Government have promised a frictionless border, but have not actually come up with concrete proposals on how this will work. Paragraph 49 of the
Ideological fixations or fantasies must not undermine the Good Friday agreement that has brought peace to Northern Ireland. The British people did not vote to break up the United Kingdom. In the words of Abraham Lincoln:
“You cannot escape the responsibility of tomorrow by evading it today”.
That brings me to one of the Bill’s most serious flaws. Parliament, not Ministers, must have a meaningful vote on the terms of our withdrawal. The Government have offered a vote on a potentially very damaging deal, and the potentially even more damaging no deal. That is a meaningless, not meaningful vote. Why is it so important? Because we need to respect the will of the people. This is not about undermining our democracy; it is about upholding it.
Many noble Lords have insisted that democracy requires that the 2016 vote is sacrosanct. They say that this is the will of the British people. They insist that those who voted to leave knew what they were voting for. Indeed they did. They voted to be better off; to have the exact same benefits as we have in the EU single market and customs union; for an extra £350 million a week that could go to the NHS; for easily agreed new free trade deals; for no change to the Northern Ireland border—and for having our cake and eating it. I could go on, but which of these elements promoted to the British people by the Leave campaign is being achieved? So far, it seems, not one.
If these promises cannot be delivered, what should a democracy do? Triggering Article 50 has respected the democratic vote of 2016. But we are now in 2018 and things may have changed. Democracy does not happen at only one moment in time. This is about the ordinary people of this country who are trusting us to look after their future. The Bill needs to allow flexibility to cater for alternative scenarios that reflect new realities.
That brings me, finally, to the Bill’s provisions for a so-called transition or implementation period. How has Parliament allowed itself to be enticed into this trap? We keep hearing about wanting to “take back control”. I say to noble Lords on all sides of the House who are sanguine about the direction of travel so far: please, open your eyes. Transition is the opposite of taking back control. It is about losing control. Once we are in a transition, we are trapped, with no way back. Our only ammunition may be a suicide bomb. We have surrendered our future and entered the unknown.
If what the British people were promised turns out to be fantasy—nearly one year on from triggering Article 50, we are still unsure what lies ahead—we cannot rely on meaningless slogans such as “Brexit means Brexit”, and referring to “deep and special” partnerships. We cannot hand the Executive a form with plenty of headings and no detail, and just leave them to fill in the blanks. We must have a better idea of where we are heading. Without a realistic vision of the future we want—one that is achievable—we must not continue on the current path without any alternatives. Perhaps an extension, as suggested by my honourable friend Mr Rees-Mogg, would be more honest, rather than a transition with no say over the rules. There are signs that the EU might agree to this. My honourable friend has also pointed out that entering such a transition would be the first time since 1066 that our laws could be made without our having a say. Does that not mean that Europe has not been a dictatorship? We have had, and still have, the freedom to make our own rules and laws inside the EU.
The necessary changes to the Bill need to be passed. That is not about undermining the will of the people; it is about upholding democracy.
My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, who has always been a steadfast pro-European. I refer noble Lords to my entry in the register of interests as a former MEP.
So, Brexit—how do we think it is going? No unparliamentary language, please, from my noble friend Lord Foulkes of Cumnock in answering that question. According to the Government’s own economic impact report this week, we have to hold up our hands as the political establishment in this country and admit that we have probably scuppered people’s economic prospects for the next 15 to 20 years. This Bill, which our own Constitution Committee described as “constitutionally unacceptable”, comes to us at a time of unique instability in modern British politics. Half of Ministers and Conservative MPs want what my noble friend Lady Smith, the Leader of the Opposition, called a “buccaneering Brexit” that hauls us out into the mid-Atlantic, as far away from Europe as possible, and they want it to happen now, today, and with no transition. The other half, the Hammond half, want to shadow the economic and trade benefits of the European Union as closely as possible. My own party is not exactly free from criticism either. How can we answer Mr Barnier’s question—what does Britain want?—when we do not know ourselves?
The Trade Secretary, meanwhile, fresh from the Derek Trotter school of international trade negotiations —its strapline being, “This time next year we’ll all be millionaires”—is touring the globe to drum up trade with deals that “could”, “might”, “possibly”, “maybe”, “sometime in the future”, come to fruition. On top of that we hear the business chorus, the cacophony coming from Davos, demanding certainty—a certainty, of course, that an embattled Prime Minister just cannot give.
Meanwhile, the money men and women in the City of London are packing their bags and will probably head for Frankfurt, as the noble Lord, Lord Higgins, suggested yesterday in his quite powerful speech. They have promises to keep, and miles to go before we sleepwalk out of the European Union—with apologies to Robert Frost. British businesses and their workforces cannot wait for the Government to decide what they want: equivalence or passporting; customs union-lite or not at all; regulatory alignment or compatibility; transition or implementation or maybe both; transition or implementation or maybe both. Then, of course, we have what 19th-century Peers in your Lordships’ House used to call “the Irish question”. Here I declare my Irish nationality. The new Irish question is of course: “How can you have virtually no border with the Republic of Ireland, an EU member state, and not be in the customs union and the single market?”. Paragraph 49 of the
The purpose of the Bill before us is, as we know, to provide a functioning statute book on the day after we leave the European Union. But this Bill is not just a procedural device: it is not a cut-and-paste, drag-and-drop, pull-across-and-slap-it-down technical exercise to convert EU law as it stands at the moment of exit into domestic law. It is, in the words of our own House of Lords Delegated Powers and Regulatory Reform Committee, a Bill that,
“contains unacceptably wide Henry VIII powers”,
or, as the noble and learned Lord, Lord Hope, said in his excellent speech yesterday, “Oliver Cromwell” powers.
Chris Bryant MP suggested at Second Reading in another place that in the history of the 20th century, and I understand that he looked into this, no Bill has ever attempted to do this, even in times of war or civil emergency. The Fawcett Society said in its briefing to us that, notwithstanding the gains from the equality Bill in the other place, it fears Ministers’ excessive powers to be able to amend and repeal all manner of employment and equalities legislation through this Bill. It should never be forgotten that our EU membership has brought enormous protection to the women of this country—their working rights, family rights and equal rights—much of it to do with the legal underpinning from the European Union.
Our EU membership has brought great protections that now seem to be at risk, because those rights do not continue under the Bill with the enhanced status that the legal underpinning from the European Union has given them for the last 40-odd years. They survive in the Bill only in delegated form, as do the equally important environmental and consumer rights that the British people take for granted as part of a safe, civilised life. The Government can expect no let-up in our efforts to make this Bill somehow, against all odds, work in the interests of the British people as we leave Europe, but leaving Europe is an act of extraordinary political self-harm for which our grandchildren and their children will not forgive us.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Crawley, and indeed a panoply of excellent speakers over the past two days. It is a well-worn opening sentence of after-dinner speakers to say: “As Henry VIII said to his wives, I shall not be keeping you long”. I hope indeed that I will not be keeping your Lordships for long but, more to the point, as the 129th speaker in this debate, I will only focus on the Henry VIII powers in the Bill.
Like many others, I have serious concerns about the powers being taken by Ministers. I have seen forecasts that more than 1,100 SIs could be used in this process. In my field, which is the environment and our countryside, some 80% of our laws are shaped by, and in some instances controlled by, Brussels, so our countryside and environment, more than any other aspect of our lives, could be gravely affected by Clauses 7 and 9. It is to be hoped that some of the necessary changes to that body of EU controls, judgments and laws concerning the environment can be dealt with in the four Defra Bills that should come before us before Brexit on animal welfare, fisheries, agriculture and, most importantly, environmental protection.
In this way, we can deal properly with many of the issues involved on the Floor of the House, but we must get it right. Post-Brexit, we must create a new “brand UK” that exudes quality in every aspect of our lives—our beaches, habitats, rivers, air, soil and, indeed, the rights of our workers and of our children. There must be no opportunity for the Executive to water down this quality agenda. We must think long term and not rely only on the promises of the current Executive. As sure as eggs is eggs, they will change, and who knows what we will get in their place—of whatever party.
I believe that a democracy is only as safe as its institutions are strong. Having Ministers able to bypass our institutions and processes is not a good sign. The unprecedented powers granted to Ministers could be dangerous.
I am extremely dubious about the current sifting arrangements proposed by the Leader of the House yesterday. One committee for the Commons; another for the Lords—what a waste of everyone’s time. What happens if they disagree? How can any such committee, of whichever House, contain all the necessary expertise in the various fields involved—fields as diverse as the licensing of drugs; changes to scientific research, employment law or the Equality Act; alterations to the birds and habitats directives vis-à-vis raptors, squirrels or seabirds, or changes to our nuclear industry? Etcetera, etcetera. How will one group of Peers know whether every SI involved is a mere technical adjustment or is instead—surreptitiously or inadvertently—a complete game-changer?
Then there is the likely number of SIs—supposedly more than 1,100. How can one group of Peers or MPs deal with them all? SIs will be flying at them like snowflakes on to a car at night. You focus on one which immediately melts on the windscreen. Meanwhile, another 50 have flown in unnoticed. You are driving your institutional car into the black of night and probably into a snowdrift. This is not good enough. In my humble view, what is needed in the Bill, as well as changing the word “appropriate” to “necessary”, is a scrutiny committee with the power to appoint expert sub-committees—like our EU Sub-Committees, but made up of Members of both Houses. The committee should have the power to propose that some negative instruments become positive and even recommend, in a few rare cases, that primary legislation is required. Because time is likely to be of the essence in this process—hence the need to use secondary legislation—I suggest that they should be able to recommend that such and such an SI should have a sunset clause. I have checked with the clerks, who tell me that this is entirely possible. This way, before the sun sets, as it were, there can be time—in certain crucial areas—for primary legislation to be properly debated in both Houses.
We need to aim for the very best of Britain in our new independence. We all know that Governments cut corners and we must ensure that, for our environment at least, in the Bill this is made too difficult to contemplate.
My Lords, in a debate full of marvellous speeches, I apologise in advance that mine is going to be boring. It is possible to be boring and very important at the same time—I know: I used to work in the Treasury. I am going to look at a specific area but, by the end, this may be a lens through which we can look at the Bill as a whole.
I want to look at family law and the law affecting families with kids. In doing so, I have been grateful for some wise and thoughtful briefing from various quarters, including the Children’s Society and the Brexit family law group. Family law has a major international dimension. There are about 140,000 international divorces and 1,800 cases of child abduction within the EU every year. The matters at stake cover divorce and maintenance, child contact and child protection, child abduction and the protection of victims of domestic violence and harassment.
Brexit and the way this Bill is crafted pose some real problems for this area. By importing EU family provisions into our law, this Bill does not change substantive law, but it maintains our obligations without any guarantee of the reciprocity necessary to make them work. The result is that the Bill shunts us into a one-way street where the UK is obliged to apply the current provisions, but the EU 27 will not have to do the same for us because we will have left.
Although there is no effect on our substantive law, EU family provisions affect our lives in various ways. Imagine a German man, Andreas, married to an English woman, Jane, living in Germany with their son, Thomas. They are affected in various ways. First, there is jurisdiction. Imagine that Andreas and Jane separate and Jane comes back to England and petitions for divorce in Birmingham, while Andreas petitions in Berlin. Thankfully, there is a mechanism to decide which court takes precedence, avoiding expensive parallel proceedings.
Secondly, there is enforcement. If Jane gets an order from an English court for maintenance and Andreas will not pay up, Jane can enforce the English order by applying directly to the court in Germany using her English court paperwork, or via the central authorities. If Jane also has a contact order from an English court when Andreas fails to return Thomas after a summer visit, the EU family law provisions provide enhanced and quicker mechanisms to get him back. England also gets the final say if, for any reason, Germany will not return Thomas. If Andreas then gets cross and starts harassing Jane, she can get an injunction against him in England which is automatically enforceable in Germany.
Thirdly, there is co-operation. The stress means Jane starts neglecting Thomas and a neighbour gets worried and alerts social services, at which point Jane disappears to Ireland. Fortunately, the rules on co-operation mean the two countries can readily share information.
What will happen to this admittedly rather unhappy family post Brexit? We will lose the rules that stop parallel divorce proceedings, so with Andreas and Jane both petitioning for divorce, if Andreas files first in Germany, under this Bill we have to stop proceedings here. But if Jane files first, Germany does not have to stop its proceedings. We could end up with simultaneous cases running in Birmingham and Berlin at vast expense, reaching contradictory decisions on maintenance and contact with no certainty about enforcement. Jane loses the enhanced provisions that would ensure the speedy return of Thomas if his dad keeps him in Germany, and our courts lose their final say but would have to respect it the other way round. Jane would have no ability to enforce any domestic violence injunction in Germany. She would have to raise separate litigation there, by herself if she cannot afford lawyers.
On the rare occasions this has even been touched on, Ministers like to say that there are alternatives. They cannot point to common law as here, we are talking procedural not substantive law. They might cite existing conventions but there is no guarantee that they will apply. There is nothing in place of the domestic violence protection measures. There are no practical alternatives on divorce. With regard to maintenance and children cases, the relevant Hague conventions offer much weaker protection and narrower provision than we have now.
In short, our citizens would be disadvantaged by lesser provisions. We would have to apply the EU provisions in our law while the EU 27 would have to give our citizens only the secondary protection under the Hague conventions, if they are applicable at all. The Bill will create confusion as to which laws apply and when. Families will not know whether or when their orders can be enforced and disputes will be slower and more expensive.
What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.
Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.
I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.
I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.
It is not just trafficking. Noble Lords may remember the awful case of Northern Irish teenager Ronan Hughes—just one example of the international nature of many crimes against children. He killed himself when images he was lured into sharing online were sent to his friends when he would not pay a ransom. Last year his blackmailer was finally put away thanks to Europol.
These issues do not make headlines, but perhaps they should. Whatever the high politics of Brexit, children in the UK deserve protection and our citizens should be able to enforce our family law in Berlin as well as in Birmingham. That is what is at stake. I very much hope that the Minister will attend to it.
My Lords, that was a speech of concentrated expertise, which I certainly will not try to follow. For those of us who seek to be in the reasonable middle of this very polarised debate, and who anyway believe we should have fought for serious and fundamental EU reform before rushing into bilateral negotiations of any kind, space is rather tight, narrow and limited. It is difficult to decide which side is the more unappetising: the extreme Europhiles who believe, in rather a quaint, old-fashioned way, that it is the UK’s destiny to remain totally tied into the obviously outdated EU integrationist model, fed by daily doses of gloom from the Financial Times, or the extreme Brexiteers in their nirvana of taking control and sovereign independence, regardless of the world’s colossal and growing interdependence and connectivity and their “dancing on a head of a pin” arguments about hard and soft Brexit.
What seems not to be very well understood is that the Bill is part of a vast and elaborate process, as my noble friend Lord Strathclyde said yesterday. It is one course in the long menu of taking powers back from the EU Commission after all these years, handing them first to the Government and then back to Parliament and the people. We are trying to transfer four decades of law, influenced by its Roman and Napoleonic code antecedents, into common law, the law of Britain and the Commonwealth. We are taking it, so to speak, from Napoleon via Henry VIII—neither of them exactly models of democracy—as much as we can to Parliament and the people.
I do not fully understand how the legal experts, whose voices we have heard, imagine that this colossal enterprise can all be done in one Bill plus a sheaf of amendments. I do not understand their ambition. This is going to be a task and a continuing struggle for years to come; in fact, in the age of popular empowerment it may well intensify. We will certainly need the sort of new instruments that the noble Lord, Lord Cameron, was talking about a few minutes ago. Yet we seem to hear impatient voices, and even some constitutional experts, calling for every course in the menu to be served and devoured at once—for every stage to be done and sorted.
We always want to see, and will have to fight for, a better balance of powers between the Executive and Parliament. However, as some in this House will remember, it took 20 years to get into the old EU—the European Community, as it was—and, frankly, it is bound to take quite a few years to disengage and correct the balance again. Meanwhile, we have a great army of lawyers, judges, academics and, I am afraid, some of your Lordships all calling for more legal certainty and more clarity for judges. Of course they would say that. We all want certainty, but a bit of patience would be welcome all round, as well as a little more reading of the works of Karl Popper. I would like to hear the word “gradual” coming from the legal authorities a bit more often. What is the phrase? “A broadening down from precedent to precedent”—is that not the tradition on which we have been educated over hundreds of years? Businessmen are always calling for more certainty but I have to say that there has always been uncertainty and always will be. The judges will just have to do their best, as I am sure they always do.
As for the idea that we transfer back into British law the whole EU Charter of Fundamental Rights, memories seem to be pitifully short here. Do your Lordships not recall how, in our long debates on the Lisbon treaty, we showed up clearly all of the charter’s inadequacies? I can remember a decade ago standing at the Dispatch Box night after night trying—and obviously failing—to explain some of the sillinesses in this overloaded document, which is far inferior to our own protection of rights and our own commitments to the human rights of the citizens of this nation. Excitable legal experts seem to have forgotten all of that.
The case for the old 20th century EU integrated bloc idea grows weaker every day and the case for a new, more flexible and intelligent kind of European co-operation and co-ordination, in the completely transformed digital and big data age we are now in, grows stronger. Nothing is static. Patterns and networks of trade are being revolutionised even while we speak. The Bill is just one stage in preparing us for these totally transformed conditions and the sooner that we allow it through, modestly improved, the better for all.