My Lords, I was going to say it was a pleasure to open this debate again, but I hope my noble friend Lord Bates, who has given 20 years of strong public service, will resume his place on the Front Bench.
I am the 132nd speaker in this debate. I declare my relevant interests as the chair of a think tank that receives EU grants, and as an adviser to businesses on international affairs. It is my ambition in the next six minutes to make two fresh arguments about the Bill. I am not sure if it is possible to do so at this stage, but each arises from the two areas of broad consensus—reluctant consensus—that exist in this debate. The first is that so many agree, however reluctantly, that it is necessary to pass a Bill that provides for withdrawing from the EU and the continuity and amendment of law, and that such a Bill should have its Second Reading. The other is that the Bill has not arrived in this House in a perfect, finished form, as Ministers themselves are ready to admit, and are quite right to do so.
On the first point, it has always been my position, as someone who voted to remain, that the best posture after the disappointment of the referendum, is for the Government, Parliament and country to make a success of it, or limit the damage, depending on your point of view. That therefore brings me into immediate conflict with the amendment moved by the noble Lord, Lord Adonis, who is in his place and for whom I have enormous respect. He made a speech that could have been—and maybe was—delivered in the referendum campaign, putting the democratic argument for another referendum. Of course, there is always a democratic argument for another say about a controversial matter, but that has to be weighed against the democratic force of the argument that people were told in June 2016 by all sides that their vote would be decisive. They turned out in numbers unusual even for a general election. More people voted to leave the European Union than have ever voted for any Government in the history of the United Kingdom.
Therefore, we have to subject the case for another referendum at the conclusion of negotiations to a critical test and think of the consequences. What would happen if the people of the country, having voted with that democratic force to leave the EU, then voted not to approve an agreement on how to leave the European Union? Would it mean that we would leave anyway with no deal under Article 50 or would it mean that the Government would have to go back and negotiate another deal? Would there not then be a very valid case to put that to, yes, another referendum—a third referendum—or would such a referendum cancel the result of the earlier referendum? Would there then not be an overwhelming case for people to campaign to reinstate the result of the June 2016 referendum? They would have a lot of justification in fighting such a campaign.
I cannot believe that it is in the national interest to get on to such a referendum merry-go-round, whatever point of view we fought for in the referendum campaign. We could have made a success of the United Kingdom in the European Union and we can make a success, with some cost and upheaval, of being outside the European Union, but we cannot possibly make a success of being in a national state of bewilderment about when we are going to have another referendum and which direction we are going in.
Therefore, I believe that the arguments that the noble Lord, Lord Adonis, put—very well, of course—must be weighed against consideration of the risks involved in putting forward such a proposition and of the extra difficulty that would be placed on negotiating an agreement to leave if another referendum were to be held. Article 50 is not designed for a change of the decision towards the end of the process, and it would plunge the country into a long and bitter dispute and division greater than anything we have seen so far.
My second point relates to the unfinished nature of the Bill. Here, I have my only note of criticism of my colleagues in Her Majesty’s Government, who I think are doing a good job in trying to implement the referendum outcome. In December, they achieved an entirely reasonable agreement at the interim stage in very difficult circumstances. However, straight after the referendum some of us argued for—shall I say?—a warmer embrace of parliamentary scrutiny than the Government have sometimes shown, including a vote on Article 50 at an early stage. Had they done so, they would not have ended up being overruled in the Supreme Court. Therefore, I hope that it will be possible to maintain a new enthusiasm for that scrutiny, as shown in amendments made in the other place.
In my determination to come up with a fresh point, I wish to add to the list of reasonable points that have been made about the legislation. Clause 9 now states, against the Government’s objections, that regulations made for implementing the withdrawal agreement must be,
“subject to the prior enactment of a statute … approving the final terms of withdrawal”.
However, 10 lines later it says:
“No regulations may be made … after exit day”.
Given the tendency of EU regulations to go over the time allotted and for parliamentary proceedings to fill the time allotted, the gap between those two events might be measured in days. Therefore that is another piece of legislation, along with others that have been mentioned in this debate, to which further thought should be given. So I hope Ministers will continue the robust implementation of the outcome of the referendum, will set forth the arguments against a referendum merry-go-round that might never end and is not in the national interest, and will embrace the parliamentary scrutiny and sovereignty that was surely meant to be one of the upsides of leaving the European Union in the first place.
My Lords, we need a Bill to maintain within law the protections and the continuity that we have. The decision to leave the European Union having been made—whatever one thinks of it—the consequence will be that many laws on which we presently depend will fall away unless steps are taken to keep them in place. But that does not mean just any Bill. This legislation is so serious and so important—for ourselves, for our citizens, for our children—that we have to get it right, and getting a complicated and important piece of legislation right is one of the things that this House does particularly well. We need to make it fit for purpose, as my noble friend Lady Smith of Basildon said, or—in the rather more graphic terms of the noble Baroness, Lady Boothroyd—copper-bottomed, ironclad and storm-proof. She is absolutely right, because when the Bill becomes an Act it will have to withstand many storms from citizens hoping that it still delivers protections for their rights, and we must not disappoint them; and from lawyers, and I speak as one, hoping to thwart them or to provide even more.
I have never before heard a debate in which so many Lords from all parties and from none have criticised a Bill for its technical deficiencies, its assault on our constitution, its assault on parliamentary sovereignty, its extraordinary switch of power to Ministers, the jeopardy it creates to our devolution settlement and the legal uncertainty it creates, not to mention the risk it poses to the peace in Ireland and the Good Friday agreement. Whatever the differences on other matters—leave or remain, a second referendum or not—there seems to be a wide measure of agreement that the Bill, as it stands, does not do what is required to make it fit for purpose. Wanting to make it fit for purpose is not putting a spanner in the works. It is not frustrating the Bill or the people’s will. The noble Baroness, Lady Altmann, was right to make that point. So there will be many amendments that we will have to consider, such as dropping the word “appropriate” in many places for something much tighter. I hope the Government heard the powerful challenge to it from the noble Lord, Lord Wilson of Dinton—who as a former Cabinet Secretary and, indeed, Permanent Secretary of the most legislating department of all, the Home Office, knows a thing or two about legislation—and his comments on what Ministers might do and delegated powers. Indeed, I hope they heard the comments of the noble Lord, Lord Bichard, with his experience in local and central government.
It has been a privilege to hear so many excellent speeches and outstanding contributions, such as those from the noble Lords, Lord Higgins and Lord Patten of Barnes, and the noble Baroness, Lady Boothroyd, not to mention those from this side, such as the noble Lords, Lord Liddle and Lord Judd—as well as some unforgettable images, such as the gangplank into thin air of the noble Lord, Lord Bridges; the nervous maiden aunts of the noble Lord, Lord Lisvane, settling down to a Quentin Tarantino movie; or the rather worrying image conjured up by the noble Lord, Lord Cormack, of somebody—and I am not quite sure how many people—getting into a bath to sing. But to make this Bill fit for purpose requires in my mind at least three objectives: to make sure there is legal certainty after the Bill is passed; to ensure that protections for the people, workers and women of this country, and everyone else, are not diminished—I pay tribute here to my noble friend Lady Crawley for rightly pointing out how European law has protected women; and, thirdly, to do so in a way which maintains the critical elements of our constitution, including devolution and, above all, the sovereignty of Parliament.
The damage this Bill will do to our constitution, if not significantly amended, has been powerfully described by a number of noble Lords and in the brilliant report of our Constitution Committee. They are right to say that this Bill, as it stands, is constitutionally unacceptable, including the largest transfer of power, as the noble Lord, Lord Lisvane, said. They are right to say that it risks undermining legal certainty in a number of ways.
I want to say, in the short time I have, a word or two about the European Charter of Fundamental Rights. I declare an interest in that I was, as many Members of the House will know, the representative of the Prime Minister—in fact, the United Kingdom Government representative—in the negotiation of the charter, so I had a very close involvement in its drafting. A number of other Members of your Lordships’ House were also involved. The noble Lord, Lord Bowness, was a representative of the House with my noble friend Lady Howells of St Davids as his alternate. The noble Lord, Lord Kirkhope, was a Member of the European Parliament delegation, while the noble Lord, Lord Chidgey, was at the time an alternate Member representing the House of Commons. I mention those noble Lords not to share with them any of the criticisms that have been made of the charter, but to illustrate something that is not often recalled about it. It was drawn up by a wide body representing Parliaments, the European Union institutions and Governments.
I need also to declare that I have spoken and written many times on the charter because of my close involvement with its drafting. I have no doubt that during the coming debates, some of what I said or have written will be pushed back to me, because it is the case that we in the United Kingdom were anxious to avoid confusion with other rights, in particular the European Convention on Human Rights, and so emphasised the limited role of the charter. But that was then and a lot has happened since. The charter has been relied on in national and supranational courts, it has been talked about a great deal, and in Committee we will have to look at some of this. We need to remember that the rights in the charter do not derive only from the ECHR, as is sometimes thought, but from a number of sources, including EU law as well as general principles of law which have no other individual legislative base. It also adds important remedies which do not otherwise exist.
That brings me to a point made by a number of noble Lords, including the noble Baroness, Lady D’Souza, my noble friends Lady Whitaker and Lady Blackstone, and by the noble Lord, Lord Warner. Why are the Government so determined that the one element of protection that will not be kept in place after the Bill has been passed is the Charter of Fundamental Rights? They say that there is no need because all the rights are protected in any event. If that is so, what is the harm in keeping it in place? If it is not the case and removing the charter will come, as many people believe, to diminish the protections they currently have, that would be a bad turn. In fact there are a number of good reasons why we need to keep the charter—reasons enumerated by, for example, the Joint Committee on Human Rights in the commentary in its report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. I respectfully commend that to noble Lords. Six powerful reasons are given why we need to keep the charter.
According to the Guardian, one of the new Brexit Ministers, Suella Fernandes, has said that exiting the EU Charter of Fundamental Rights would “avoid” extra protections. If that is what is happening, that is not maintaining the protections which currently exist in this country. Even if it were right that the protections add nothing, why remove them? It will mean that the rights in the charter from which we and our fellow citizens should benefit will be less accessible and less visible. That is because making rights visible and accessible was one of the key purposes of the charter. It would be mean-spirited to remove it. To make a change in this Bill to reduce the visibility and accessibility of rights, even if eventually they can all be found somewhere else is—I say it again—mean-spirited. Having and celebrating rights, not hiding them but being proud of them, is the mark of a good, decent culture. That is the sort of culture and country in which I want my children and grandchildren to grow up.
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Hague of Richmond. Although I do not agree with the picture he painted of the multiple referendum scenario, I am inclined to think that we would all be better off if the Prime Minister had persuaded him to return to the Foreign Office.
The purpose of this Bill is to provide the legal mechanism to ensure that if we leave the European Union, we do so without leaving a huge hole in our law. However, we are having to consider it when we have no idea of what our future relationship with the rest of Europe will be and we have a Cabinet that cannot agree on what that relationship should be. Moreover, the Bill as drafted is incapable of carrying out its purpose without leaving a mess of legal uncertainty for the courts to sort out, without giving sweeping powers to Ministers, without undermining the sovereignty of Parliament and without undermining the devolution settlement, the Good Friday agreement and the future integrity of the United Kingdom. All that is in addition to the damage that Brexit will do to the UK economy and to European common endeavour on issues such as security, judicial co-operation and the environment. That is also in addition to the damage that leaving the customs union and the single market will do to my own region, the north-east of England, with its strengths in the motor industry, train building, pharmaceuticals, agriculture and its universities.
As this process staggers on, the demand for the eventual terms to be put to the British people will grow. In the meantime, however, let us get the Bill right; let us try to make sure that it does not further embed undemocratic practices, ambiguous laws and overcentralised government.
My priorities for the task are those of the Constitution Committee, on which I have the honour to serve in the company of some of the most expert and diligent Members of this House. There is a very convenient set of potted biographies of us all in Monday’s Daily Mail, in which we are named not as “enemies of the people” but as “The peers trying to slam the brakes on Brexit”. In this task, however, that is not what we are doing: we are trying to fix the steering and get the Bill through its MOT test.
We should first be getting the task of the courts manageable and the sovereignty of Parliament clearer by treating retained European law as primary legislation. Why a Brexit Government want to confuse the issue by retaining the concept of the supremacy of EU law in the Bill puzzles me.
Secondly, we must secure effective parliamentary control over the mass of delegated legislation which will flow from this Bill, by more narrowly defining its scope and by giving the House the power to determine, not merely to advise on, what level of scrutiny it requires. This is not just about Henry VIII powers. It extends to other statutory instruments, which can, for instance, set up new public bodies. Such an instrument would not be open to amendment, so the House could be presented with a new health or environment regulator and be unable to insist that it was more independent or had a better defined remit.
My third objective is to see that Clause 11 is amended so that it conforms to the devolution settlement. As drafted, the Bill allows the UK Government to hold on to powers which should be passing directly to the devolved Governments. There may indeed be a need for common frameworks in some fields, but as it stands these would not be discussed on an equal basis. UK Ministers could say, “We will devolve the powers, but only if you accept our view on what the common framework should include”. The power of UK Ministers to change the content of legislation previously enacted by devolved Parliaments is an offence against the principles of devolution. I have no idea why Ministers have not so far delivered on their promise to amend this clause, but we need to see whether what they propose is adequate and whether they have got the message that this House has delivered loud and clear.
Finally, I remain puzzled—or should I say mistrustful —about the position of Brexit hardliners. They say that they want to bring power back to this Parliament—this sovereign Parliament. This sovereign Parliament, however, is entitled to insist that Brexit, if it happens, does not become an accretion of power by Ministers without adequate parliamentary control. Furthermore, this sovereign Parliament is entitled, if it chooses, to insist that if we do leave the European Union we nevertheless seek to remain in the customs union and the single market, for the sake of British business and British jobs. Moreover, this sovereign Parliament, once the terms of any British exit are known and the reality of it becomes clear, is entitled—if it wants to—to seek the opinion of the British people as to whether this is what they want.
My Lords, I thank the Minister for allowing me to go before the end of the debate, which allows me to participate in this really important discussion. This is a vast area, so I have chosen to confine my comments to the implications of this Bill for Britain’s 12 million disabled people.
Disabled people in Britain have benefited from some of the best equality and human rights legislation in the world. Indeed, Britain is a world leader. A significant part of that is grounded in EU law, and the EU has been at the forefront of measures to enhance accessibility for disabled people, such as special assistance at airports, web accessibility, accessible goods and services and manufactured goods.
Disabled people are right to be concerned that those benefits should not be lost or watered down when the UK leaves the EU, as countless organisations, such as Scope, Disability Rights UK, Mencap and others have impressed on me. They have fought very hard to gain some measure of equality, and there are still too many instances of human rights violations against disabled people in Britain in the 21st century.
As so many noble Lords do, I too have deep concerns about the sweeping powers the Bill gives Ministers to amend or repeal legislation, with inadequate safeguards and scrutiny by Parliament. The Government have said that delegated powers will not be used to make significant policy changes and that equality rights protections will be maintained. But this is not reflected in the Bill so far and it needs an explicit commitment to non-regression. I strongly caution against measures which allow delegated powers to change any equality or human rights laws. Having been personally involved in developing advice, information and detail on disability equality laws in this country for decades, I would be extremely alarmed if they could be changed other than by primary legislation. When delegated powers are used in other cases, the Minister should specifically confirm that they will not affect equality or human rights.
My second concern is, I am afraid, one which many others have: with the exclusion of the European Charter of Fundamental Rights. The Government claim it adds nothing that is not covered elsewhere but an independent QC, instructed by the EHRC, has said that its exclusion would lead to a “significant weakening” of human rights protection in the UK. The Joint Committee on Human Rights has just published its report, as others have also said, commenting on the Government’s analysis of the charter’s provisions. It shows all too clearly that exclusion of the charter will result in legal uncertainty, which is likely to undermine human rights protection.
The charter contains some rights that are not replicated elsewhere, such as Article 26, which helps give effect to disabled people’s independence and participation in community life. It helps me to speak in this debate. Many charter rights, which are based on general principles of EU law, will no longer be enforceable: for instance, Article 1 on “Human dignity”. I find this deeply worrying. The charter has helped to interpret how the principles of EU law operate. It provides a really important framework for protecting equality, fairness and human dignity, which I believe will be weakened if it is excluded. Given that the UN Convention on the Rights of Persons with Disabilities is still not incorporated into UK law, this is no time to risk erosion of our rights. Excluding the charter is not only about the loss of rights. Victims of abuses have stronger remedies under the charter than under the Human Rights Act. At best the demise of the charter will create uncertainty and confusion, contrary to the Bill’s intention. It must be retained.
Equality and rights for everyone are of paramount importance to building a fair and just society—a society that works for all. I intend to do my utmost to help the Government ensure that these essential rights are not lost under the Bill, and I will support amendments to achieve that aim.
My Lords, I do not intend to detain your Lordships very long by my remarks. Like many others in your Lordships’ House, I voted to remain. One of my key reasons for doing so was my fear that any leave vote would undermine the integrity of our United Kingdom. I should have had more faith in my fellow Scots because, more than a year on, it is now clear that the union has not been undermined in Scotland by the vote of the United Kingdom to leave the EU but that, in fact, the entire United Kingdom will leave the EU next year.
My issue is how this Bill can be improved in respect of Clause 11 and the devolution settlement in our United Kingdom. I can fully understand why, in Clause 11, there was an intention when the Bill was drafted to ensure the integrity of the single UK market, which is so important for our whole United Kingdom and especially for Scotland. For Scotland, it is four times larger than the EU market, something that is often underestimated. As my noble friend the Leader of the House said yesterday, maintaining that UK market is absolutely essential to the future of the United Kingdom.
However, it is clear that perception is reality. As the noble Lord, Lord Kerr of Kinlochard, said in last week’s debate on Brexit and devolution, there is a clear perception that the devolution settlement is being undermined by the current Clause 11, which the Government have thankfully committed to seeing righted through amendment. It is very important, as we move through the stages of the Bill, that we ensure that any such amendment is one agreed by all three Governments: Her Majesty’s Government, the Scottish Government and the Welsh Government as well. It is clearly disappointing that there is not currently a Northern Ireland Executive to support and work on that amendment because, at the moment, Clause 11 undermines our constitutional settlement. As the Constitution Committee chaired by the noble Baroness, Lady Taylor, has made clear, this is a very important and fundamental weakness in the Bill that we must address.
As I said last week in the Brexit and devolution debate, we have an opportunity through Brexit to strengthen our United Kingdom by demonstrating that Her Majesty’s Government recognise and fully support the devolution settlement and that the devolved Administrations are fully involved in the Brexit negotiations and process as we go on. It is important that we give a clear signal that that is going to happen by seeking and securing agreement between all parties involved on this fundamental amendment. We have an opportunity to do so: I know that Her Majesty’s Government are working very hard to do this. I was also very encouraged by the briefing for Peers from the Scottish and Welsh Governments, which showed that they were fully engaged and optimistic about the outcome’s framework agreements between themselves and the UK Government. This withdrawal Bill—with the necessary amendment—offers us an opportunity as a House and as a Government to ensure that people understand that the devolution settlement is safe in a Brexit UK, and that the devolved Governments will be fully involved in the process of leaving the EU.
My Lords, one thing on which we are all agreed is that this is a hugely important and necessary Bill if we are to avoid any kind of legal cliff edge. For me, it possesses a very important characteristic that is sadly all too rare in most of the legislation that comes before this House. The test that it passes is that, for all its complexity and weaknesses, it is crystal clear in its central purpose and objective. It is designed to ensure that this Parliament, of which we are privileged to be Members, will restore to itself the full authority to make the laws which the British public are obliged to observe. If the people do not like the laws passed by MPs, then they can remove them in a general election. That is at the heart of our parliamentary system: a Government accountable to the people through a directly elected House of Commons. For me, the sovereignty of Parliament is a golden principle which was severely compromised by the European Communities Act and about which we have been careless for far too long.
Surprisingly, I found myself agreeing very much with the noble Lord, Lord Beith, in his view that parliamentary sovereignty in the passage of this legislation towards our exiting is very important indeed. I welcome the many people who are expressing the need to see that that is involved in all stages of the process. I have to say that it is some contrast to the fact that many of these people are strong supporters of the European Communities Act, which was about removing or diminishing parliamentary sovereignty in this country. I welcome this Bill, which removes legislative powers from the EU institutions, where Bills are passed by people over whom we have little control and who we cannot remove, and brings them back to the British Parliament which is democratically accountable to the British people. As they say these days, “What’s not to like about that?”
There are many who say, and I have heard it many times, that the Bill is restoring powers not to Parliament but to Ministers, and I agree with much of that. There will be important discussions on Henry VIII powers and various forms of delegated legislation and the like, but what I find weak about the power grab argument is that it implies that Parliament—the House of Commons—is powerless in respect of Ministers. Ministers are answerable day in, day out to MPs. Ministers’ reputations, often their careers, are made and broken in Parliament. Most important of all, if the House of Commons does not like the way that Ministers are running the country, it can defeat them all in a vote of no confidence in the Government and let the people decide, as happened in 1979. I know because, like many other noble Lords, I was there.
The Bill arrives in our House as part of a process which began with the referendum result and the 17.4 million people, a record poll, who voted to leave the EU. That falls off the tongue as a glib phrase, but we should reflect for a moment on the significance of that vote. Leave votes were cast despite advice coming from virtually everyone in authority—let us call them “the great and the good”—telling people to vote remain: the Tory Government, the Labour Opposition, virtually all the other political parties—the Liberal Democrats, the SNP, the Green Party and the Welsh nationalists—the captains of industry, trade union leaders, the universities, the IMF, the Bank of England and leaders of sundry countries throughout the world. Yet despite all this warning of the perils of voting leave, amazingly, astonishingly, the people said, “Thanks very much for your advice, which we usually dutifully follow, but this time no thanks”.
There is no polite or popular way for me to say this, but there is an elephant in this room. It is the colossal mismatch between the balance of opinion here, judging by the contributions in debates over the months, and the balance of opinion in the country at large. When I go home at weekends, people do not say, “I made a dreadful mistake, I voted leave”; they say, “Why aren’t you getting on with it?” Given that the most often quoted reason for leave voters voting the way they did was that they were not being listened to in Parliament, let us not confirm that impression, particularly not in an unelected House, by appearing to delay or, at worst, block Brexit. Above all, let us avoid saying to 17.4 million voters, as some speeches have seemed to, that we know what is good for them better than they know themselves.
Since the referendum we have had a general election in which nearly 85% of the electorate voted for parties committed to leaving the European Union. My party manifesto stated clearly:
“Labour accepts the referendum result”, and:
“We will build a close co-operative future relationship with the EU, not as members but as partners”.
The Conservative manifesto stated:
“Following the historic referendum on 23rd June 2016, the United Kingdom is leaving the European Union”.
Parties which were most hostile to us leaving the EU, notably the Liberal Democrats, the SNP and the Greens, all lost vote share. The Liberal Democrats, who have been quite clear that they want the referendum result reversed, who voted against the implementation of Article 50 and who called for a second referendum to cancel out the first, saw their vote share drop from 7.9% to 7.4% or, to put it another way, the party which inaugurated its general election campaign by aiming and claiming to be the party of the 48% concluded its campaign as the party of the 7.4%.
In conclusion, our responsibility in respect of the Bill is clear. It is to examine the Bill in detail, as we always do; to ensure that it is fit for purpose; and in so doing, to respect the referendum, which we established in this House, and its result, which it is now our duty to implement.
My Lords, it is a pleasure to follow the noble Lord, Lord Grocott. He is an accomplished parliamentarian who has the benefit of consistency. The line that he has just been peddling, with which I profoundly disagree politically, has been held by him consistently since 1972, which is quite a claim to fame.
However, there was a glimmer of hope in the remarks he made, as he said that he agreed with some of the things that my noble friend Lord Beith said. I think that the House will look to him and all his political stagecraft and experience to make sure that scrutiny procedures are maintained, because we will need all the help we can get to make sure that the Government do not just give Ministers blank cheques.
The standout moment for me yesterday was when the noble Lord, Lord Bridges, said, tellingly, that keeping every option open was no option at all. That is the message that I hope this debate will carry to the Government, because it crystallises the problem politically as I see it. The standout moment for today, which the noble and learned Lord, Lord Goldsmith, referred to, is the graphic image from the noble Lord, Lord Cormack, of two noble Lords in a bath singing “Je ne regrette rien”. I apologise to the noble Lord, but I have to say this, because it is true. A mental image appeared in my brain of the noble Lords, Lord Lamont and Lord Cormack, in a hot tub singing it. That is an Instagram image to kill for. This is meant with due respect to both noble Lords.
This has been a very constructive debate—and worth listening to, because the points have all been apposite. It is not yet boring, although that might be different by 9.30 pm. I hope the Government have clearly understood that there is no attempt on anybody’s part to wreck the Bill. There was never any attempt to do that, and no appetite for it on any side. If there was, I would know about it—and there is not. I can tell the Minister with some authority that he need have no fears about the Bill not getting a Second Reading. However, in a political context, the Government are clearly the author of their own misfortune. As the noble Lord, Lord Radice, and some other colleagues have said, self-imposed red lines and deadlines with no end game in sight are a recipe for incoherence and incompetence—which is the position that we are in at the moment.
We are all anxious to burnish our credentials. I arrived in the precincts of the Palace of Westminster in 1971, and one of the first acts I witnessed was the Liberal parliamentary party of its day assisting the then Prime Minister, Edward Heath, as he took the country into the EEC. Among other things, that means that I am actually older than I look, which is a cross I have to bear. I have been here for 47 years one way or another, in different roles. I was my party’s Chief Whip in the Maastricht debate. Then there was a defined treaty, in plain sight and in hard copy. People knew what they were arguing about, and it was still difficult. There were no deadlines—but, again, the Liberal Democrats came to the rescue. I learned more new bad language in the Conservative Whips’ Office during the Maastricht debate than I ever had in any earlier parts of my life. It was all quite tense, but John Major won because we helped him.
Recently during the coalition we helped David Cameron by co-authoring a Bill which put a lock on the ceding of any further powers to Brussels, subject to a referendum. I do not usually say this, but the Liberal Democrat parliamentary group in the House of Lords deserves some credit for 47 years of solid, unwavering support—some might even say strong and stable support—for the position that the United Kingdom should stay at the heart of Europe.
I am a member of the Secondary Legislation Scrutiny Committee and, for me, the battle lines will be drawn on the content of Clause 7, Schedule 7 and, to a lesser extent, Clause 11. I pay tribute to yesterday’s magnificent short speech from the noble and learned Lord, Lord Hope of Craig head on Clause 11, and I, too, will be speaking about it, for obvious reasons.
Cross-Bench votes—not just voices—are very important. I know that there are sometimes challenges among our Cross-Bench colleagues, but they are non-aligned and have a special value in this debate. They are excellent contributors to the scrutiny process and if they do not hold their end up and give their support we may lose votes—so I hope they will think about that really carefully.
The Leader of the House made some helpful comments at the beginning of the debate about how she was going to bring forward some new proposals in March. The new system has to be operational by April or May and that is too tight a timetable for this to be done sensibly. The Constitution Committee’s ninth report has done the House a signal service, and the battleground it maps out is the one on which I will seek to attack Clause 7 and Schedule 7. The Secondary Legislation Scrutiny Committee needs further and better particulars and basic things like early access to drafts—if that is possible, it would help. We also need to smooth out the peaks and the troughs in the flow of the delegated legislation we consider, and resources to staff up the committees. I hope that these will be put in place meaningfully, otherwise the quality of the scrutiny—because of the volume of legislation—is bound to suffer, and that is not in our interests.
I also hope that the usual channels will start to look again at the Cunningham doctrine, which colleagues may remember suggests that in very limited circumstances the possibility exists for this House to reject statutory instruments. If the Government do not get this Bill right, Members such as I will be driven to thinking in these terms. We do not want that, so I hope that the Government will get on with this and make sure that the Bill is amended—particularly Clause 7 and Schedule 7 —in a way that guarantees a scrutiny role for this House, because that is what we are here to do.
My Lords, the European Union (Withdrawal) Bill, to which I hope we are going to give an unopposed Second Reading tonight, is a pretty different animal to the one tabled some six or more months ago. It has been amended, against the will of the Government, to provide for a meaningful statutory process before any deal is approved by Parliament—a provision originally put forward by your Lordships’ House last March in the context of the Article 50 Bill. That is very welcome. The Government have also brought forward amendments on the handling of Henry VIII powers, which, while they certainly need further improvement and strengthening, at least show that the Government are aware that the original approach was excessively tilted towards the Executive. The noble Baroness the Leader of the House made a good move when she said that she was listening and would probably bring forward further amendments soon.
But this Bill remains, I fear, a serious case of putting the cart before the horse. We are, in fact, being asked to legislate before we know the outcome of the negotiations in Brussels with respect to the divorce settlement, the transition or standstill phase and the framework for a new partnership, all of which will alter—and probably in many cases override—much of what is in this Bill. Moreover, the Bill stands in the heavy shadow of a further piece of primary legislation, the implementation Bill, which will need to complete its course through Parliament before we leave, because it will need to give effect in our domestic law to any provisions to which we have agreed in the negotiations in Brussels. That implementation Bill had not even been thought of at the time when this withdrawal Bill was originally tabled, when it was then called the great repeal Bill. That is a bit of a sign of the Government’s remarkably haphazard and rather chaotic approach to Brexit.
Nevertheless, for all its defects, this Bill is clearly a necessity. The gaps in our statute book need to be plugged if, and when, we actually leave. That is why it is right to give the Bill a Second Reading. However deeply those like myself believe that leaving the European Union is a fundamental error of judgment, which will be damaging to our economy and to our influence in the world, we are absolutely required to put this Bill on the statute book without undue delay.
The Minister who will reply to this debate is particularly fond of dwelling on the democratic legitimacy of the June 2016 referendum vote and of the whole Brexit process. I have no intention of beginning a debate here today about the relative merits of plebiscitary and representative parliamentary democracy, but I would just say that people who live in glass houses should be a bit careful about throwing stones. The Minister’s presence at the Dispatch Box is largely due to the support in the other place for the Government’s Brexit policies by the 10 Members of the Democratic Unionist Party of Northern Ireland, but that party has no democratic legitimacy as far as Brexit is concerned at all, because the people of Northern Ireland voted to remain.
I shall mention just one or two of the matters that will certainly need more careful scrutiny. The first of these is the provision that would have the effect of extinguishing the jurisdiction of the European Court of Justice in this country on the day we leave. Whatever one’s views of the Government’s rather mindless demonisation of the European Court of Justice—and, in my view, it is both mystifying and self-defeating—the Government have already conceded the point in Brussels, since individuals will be able to take their cases on status issues and have them referred to the European Court of Justice for the next eight years after we leave. The standstill, transitional arrangements, which are currently under negotiation, are inevitably going to drive an even larger coach and horses across that red line. So why on earth should we be marched up to the top of the hill to eliminate the jurisdiction of the Court of Justice on the day we leave, only to be marched back down again in the implementation Bill?
Then there is the whole business of the exclusion from the scope of this Bill of just one piece of many thousands of pages of the acquis communautaire, the Charter of Fundamental Rights. How on earth can that be justified? The fundamental rights enshrined in the EU charter and the Council of Europe convention are values that we need to uphold, whether we are inside or outside the European Union. They surely need to be part of the new partnership, for example, which the Prime Minister, rightly in my view, is trying to negotiate as her ultimate objective.
Committee stage debates are all too often in this House treated as Second Reading debates, but I shall try to avoid falling into the opposite trap—so I shall stop talking about specifics. The complexity of the overall package of legislative instruments, not just in this Bill but in the others that will follow it, is pretty daunting. It is a reminder of the extent to which our economy has become integrated with that of our European neighbours over the past 40 years. It is shameful that those who campaigned to take us out of the European Union were so unaware of that or, if they were aware of it, were so unwilling to share that with the voters. I think that the voters are now becoming aware of what is in store for them; the chickens are coming home to roost, and it is going to be a pretty painful experience.
My Lords, it is a privilege to follow the noble Lord, Lord Hannay. He and I co-operated as closely as we could on the original attempt to keep us in the European Union. Today, however, we are faced with leaving the European Union and I make no comment on that except to accept it as a fact and to refrain from any prophecy as to what will happen next.
The Constitution Committee of this House has done a very good job, and most of the amendments it proposed would improve the Bill. I just want to mention one or two general points raised by these amendments. The Bill is to bring into the United Kingdom’s statute book legislation passed by Europe but not presently on the statute book. It also provides that this legislation would have priority or supremacy over UK legislation in the same area. This problem is one that the Constitution Committee has solved with great elegance. First, it has said that the direct EU legislation should be treated as primary legislation; that is, as legislation passed by Parliament not under the authority of Parliament. Secondly, it should be deemed to have a date of our leaving date. Because of our system, that will automatically give it priority over any Act with which it conflicts and which preceded it. I regard this as an extremely clever—indeed, wise—suggestion for dealing with this matter. The Government had thought to have a case-by-case decision about this, but I think this is much better and I commend it to the Government strongly.
The second point relates to the jurisdiction of the European Court of Justice and to references by our courts to that court. The idea of the statutory reference is being swept away, but that still leaves the question of whether our courts should have regard to decisions of the European court. My experience, such as it is, of this is that our courts are free to look at any court decision they want—from Australia, New Zealand, Canada, the United States, or even Scotland. They are absolutely free to do that. Originally, I was therefore rather minded that this should continue as far as the European Court of Justice is concerned. If something helpful was said in that court, there is no reason why our courts should not take that into account. The noble and learned Lord, Lord Neuberger, as President of the Supreme Court, pointed out that such was the political heat of that sort of suggestion, it would be very unwise to subject judges to that kind of conflict. Therefore, it would be right for Parliament to take responsibility for saying when they could refer to the European Court of Justice. The Constitution Committee has recommended a very sensible way of dealing with that: where a court here, considering a piece of pre-Brexit legislation from Europe, finds that the European Court of Justice has later made a decision relevant to that sort of case, it is entitled to turn to it.
My final point relates to the devolution settlement. I regard this as absolutely fundamental but also as extremely difficult, because there are various levels of power in Europe that may be in, for example, the area of fisheries. First of all, there are international powers in relation to that. Our current international relationships in relation to fisheries are with the European Union. If that power is returned here, it should belong to the state of the United Kingdom. On the other hand, detailed provisions about what happens to fisheries are made at a more local level, under the present devolution settlement. Therefore, there is a problem with how this should be done, which I regard as very much a matter for negotiation between the Government of the United Kingdom and the Governments—where they exist—of the devolved Administrations. I very strongly support the view that it would be most unfortunate if Northern Ireland continued without an Administration. I hope that will not continue and that the new Secretary of State—I am saddened by the health difficulties of the former Secretary of State for Northern Ireland—will, perhaps with the Prime Minister’s help, be able to restore the Administration. Anyhow, it is a matter for negotiation between the devolved legislatures—the Ministers of the devolved Governments —and the Government of the United Kingdom. I certainly hope and believe that the best solution to the Clause 11 amendment is for the Government to come forward with an amendment agreed by those parties. I have great confidence that they all seek a solution to what I regard as a very difficult problem. I hope they will succeed. If they do, I am sure it will be with the greatest pleasure that we will give effect to that agreement.
The last point I want to make—just after the last one, as it were—is that the European Charter of Fundamental Rights is a big subject. The noble and learned Lord, Lord Goldsmith, said a good deal about that. I will not take time on it now, since my time is up anyway.
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Mackay of Clashfern. I could not agree with him more on what he said about the Constitution Committee. It has done a lot of the Government’s thinking for them. I hope that the Minister may be inclined to bring forward his own amendments on that basis.
Like so many noble Lords, I deeply regret the necessity of this Bill, but I feel we have no choice but to do what only we in this House can do. I believe we are engaged in an historic act of self-harm, but by amending the Bill we may be able to mitigate some damage and make the future a little more predictable. We are awash in a sea of legal and political uncertainties, about which many noble Lords have already spoken brilliantly. They make a nonsense of the constant mantra we hear from the Government about the need for certainty and control. The right reverend Prelate the Bishop of Leeds, who is not in his place, made a most powerful speech yesterday when he spoke about the “normalisation of lies”, to which I would add the normalisation of delusion. The greatest delusion of all is that, after a year characterised by denial and bluster, the Government can magically achieve a deal that has never been on offer that will enable us to retain all the benefits of being in the EU with none of the obligations. We need to get rid of the culture of infantilisation—the fear of reality—that has so reduced the debate we should have had on Brexit.
We have an opportunity to reassert the constitutional balances of power that are so dislodged by Clauses 7 to 9 and 17. They give unprecedented delegated powers to Ministers and Whitehall—justified, as they always would have been, by the need for speed and flexibility. The transposition of EU law into UK law presents unique challenges but does not require draconian powers never before seen in peacetime. These clauses are, frankly, opportunistic. The first task is obviously to take control back from Ministers and put it back into the hands of Parliament, where it belongs.
The second task, to which the noble and learned Lord, Lord Mackay of Clashfern, and many others in this House have alluded, is to prevent the constitutional car crash that is heading towards the United Kingdom in the potential failure of the devolution settlement and the deferred model. The challenge is technically complicated but politically extremely simple. If Clause 11 is not amended, the constitutional equalities will disappear as the devolved Governments are locked down, subject to a new set of restrictions and required to wait for their partial release while Westminster and Whitehall fix up the post-Brexit world.
After seven months in which little urgency has been shown, little regard for consultation with the devolved Administrations and no sniff of amendments, can the Minister give a guarantee that the amendments to Clause 11, which are badly needed, will be presented before we debate it in Committee and after consultation with the devolved Administrations? That is the least that they could expect.
The third task is, of course, to ensure that Parliament has the decisive vote, not just simply on the terms of exit but including on the real possibility of no deal, on the nature of the transition and on the framework of our future relationships.
The parties in the other place have shown us how to proceed by example. They made common cause to win a number of very welcome concessions around scrutiny and the notion of deficiency in retained law. I know that we can work together across this House to build on that to ensure not least that Ministers do not have the carte blanche to decide on the use of regulations to prevent, remedy or mitigate the failure of, or deficiency in, the retained law as they see appropriate—for which read “desirable”. Those powers are as wide as the definitions are boundless. Rather, as my noble and learned friend Lord Goldsmith said so powerfully, Ministers should be required to justify this as of necessity to achieve the limited object in question. This is not just a constitutional point; it goes to the heart of what our country will look and feel like after Brexit. The way those powers are used brings the possibility of greater risk, lower standards and the loss of opportunities. Anyone who is concerned about the fate of public and health services, the science base, the safety of the environment, the prospects of our children, and whether our inequalities continue to grow or shrink has a huge amount to lose by the winning or losing of that debate.
The Government constantly ask us to trust them not only to know what they are doing—I will be glad to park that—but to use their powers to change laws that they do not like. No Government could be trusted with these powers; they are irresistible. Time and again this Government have tried to take more power and diminish scrutiny. Remember our battles over the then Public Bodies Bill and the then Deregulation Bill; and the creeping use of secondary legislation to make policy and not merely correct technical errors? We should add that to a whole year spent trying to exclude Parliament, even in the courts, from having a say in the decision to leave, and a toxic obsession with secrecy that has kept under wraps any evidence of impacts which might inform, let alone change, public opinion. We end up with a Government who do not trust the people with evidence, let alone truth, and who have, I believe, forfeited the right to be trusted themselves.
We are already being bullied and we will go on being bullied, but the enemies of the people are those for whom all evidence is rubbish and all argument treason. I am sure that, just as has been done in the other place, we can work together in this House not just to make this Bill constitutionally acceptable but to restore trust in the democratic and parliamentary process itself. I believe that will be possible because, no matter where we stand on Europe, we all stand together in defence of parliamentary sovereignty.
My Lords, it is a great pleasure to follow my erstwhile political friend but I hope still personal friend the noble Baroness, Lady Andrews. Of the cornucopia of questions that have come up so far in this debate I will to address only one: namely, does the result of the referendum in June 2016 effectively compel Parliament to agree to Brexit, of which this Bill is part?
I express no view as to whether Brexit is a good thing or a bad thing, for the simple reason that, perhaps uniquely in this House, I hold no strong view. Of those eligible to vote in 2016, 37% said yes. That is 51.9% yes on a 72.2% turnout. Given the flaws in the electoral register and the exclusion of 16 to 18 year-olds from the poll, it must be doubtful if even a third of those who should have had a say voted to exit. But never mind—one is enough in an election, and it seems moany to question whether, in light of the result, the Government have a right to pursue Brexit. They do.
But we have a sovereign Parliament. Indeed, the sovereignty of Parliament was the absolute core of their argument for getting out of the European Union. It trumped by far silly scrawlings on buses about national health spending. To restore sovereignty from Brussels’s depredations is why we are leaving. To argue, on the one hand, that the sovereignty of Parliament is the supreme virtue and then, on the other, that sovereignty should not apply in this one case is surely a paradox too far.
Let us be clear. Parliament under our constitution is entitled to overrule the referendum result if that, in the considered opinion of its Members, is the right thing to do. No Parliament can bind its successor, and no election result remains the result for ever. In this case there is a clear and important difference, I think, between the remain side and the leave side in the referendum. The remain side was for remaining on the terms renegotiated by David Cameron. The leave side was for—what? Soft or hard? Single market or not? Customs union or not? Irish border or not? What movement of labour? There are as many answers as there are Brexiteers, as the current debate in the Cabinet illustrates.
Following the negotiation, there will be a single alternative to membership. Some who were remainers might then say, “Well, that is a good result. I think I should have voted leave after all”. Some who were Brexiteers might say, “That’s not what I really voted for. I want another go. I don’t like this”. It is between remain and that single alternative that the choice will then lie, and the sovereign Parliament, as I think the Government have now conceded, must ultimately make that choice.
I am very sympathetic to the view of the noble Lord, Lord Higgins, that it would be best if we made the choice ourselves, with a strong eye, of course, to public opinion but also bringing to the question the epistocratic virtues of our parliamentary democracy. That is not practicable. Having asked the people once, and having said wrongly that we would abide by their verdict, we cannot, without damaging national unity in the long term, simply overrule them.
The only answer, therefore, is a second referendum, where the terms are known. Judging by the poll in the Guardian this week, it is a choice which the people of this country would by a substantial majority welcome. Let us hope it would be the referendum to end all referendums.
My Lords, I want to make clear my overall support for this Bill and its purpose. Technically, it seeks to sever our links with the European Union by removing the supremacy of European law and the competence of the European Court and its interpretation of that law. I support that aim. I do support Brexit.
I do not support a second referendum. It seems odd to me that those who objected to the first referendum on the grounds that it offended the principle of parliamentary democracy—in fact, I think yesterday it was called a sin against parliamentary democracy—now argue that it is an appropriate way to allow the electorate to express a view.
For a while, I—like, I suspect, others in this House—was conflicted on how to vote in the European referendum. For me it was a heart and mind decision, and of course they were not entirely in agreement. I could see that there were risks involved in exiting the EU. It was the status quo, and therefore there would be costs associated with the change and disruption to our governance—as we will probably see here over the next few weeks. There was the potential effect on economic trade. The European Union, including its currency, has not been an economic miracle. In fact, it has enhanced bureaucracy and reduced free enterprise. The European procurement process alone is a disincentive to innovation. In the Metropolitan Police, where I served, the dreaded words “EU procurement in public service” usually means 18 months of little progress. The contradiction is that it takes longer to make a worse decision than in commerce.
The Union is said to have better protected human rights against the infringements of the state. However, the more intrusive the European Union became, the more that protection was needed from a Commission, Parliament and Council of Ministers that lacked democratic accountability.
Concerns have been expressed about our future security, but our security is built on a strong military, intelligence and policing infrastructure. However, I argue that maintaining all these does not require the UK to be a member of the EU. In defence, our military strength depends on our own investments and innovation, together with those of our allies. Our major military bulwark is NATO. It does not rely on Europe but it does rely on America.
In the sphere of intelligence, our intelligence effectiveness is built on our partnership with the “Five Eyes” intelligence community of America, Australia, Canada, New Zealand and the UK—yet they are not in Europe. No country in the world shares all its intelligence and sources with any other country. Europe does not have an intelligence hub where the French tell the UK and Germany tells Holland everything they know about each other—it is not in their national interest to do so. The reports that the US had listened to the German Chancellor’s telephone can have surprised no one. However, we have been very effective at bilateral sharing of information on terrorism. Does anyone seriously suggest that on leaving Europe we would not share information about attacks on Paris or Brussels, should we have it?
On policing, we have been effective at sharing criminal intelligence, wanted lists and extradition warrants through Europol, which is not an enforcement agency. We have also co-ordinated enforcement through Eurojust and MLATs, which have enabled efficient investigations. However, our European experience has not been perfect. When we voted to leave Europe we were still not a member of Prüm, the European database of DNA, fingerprints and facial images that is shared across Europe. The European extradition warrant was efficient and consistent across Europe, but it required a sufficiency of evidence to charge in the requesting country before such a warrant could be issued. This meant that, on return to this country, the suspect could not be interviewed and had to be charged immediately. This is a high bar which interrupted some very good investigations.
The benefits of Europol are enjoyed by Norway, which is not a member of the European Union—so why not the UK? There is great mutual benefit to Europe and the UK in not providing a safe haven to criminals from each set of countries. No one wishes to see French rapists roaming free in the UK, and I am sure that this will be one of the issues to be resolved in the present negotiations, with new extradition agreements based on the existing model.
I resolved my heart and mind dilemma by realising that what mattered most of all was sovereignty. In fact, the Bill might better have been called the “Sovereignty Bill”. The ability to influence the Parliament of which we are Members is a democratic principle that our people have fought and died for in the past. I could have disavowed that principle if I had been convinced unequivocally that we would suffer disastrous economic damage, but for me that was not proved.
I understand why people feel so passionately about being part of Europe. However, it appears to be changing from a common market to a federation. It has declared in its treaties an intention to become closer, and its leaders have declared in speeches and policies an intention to become a federation. Ironically, I believe that federations have been shown around the world to be a force for good, and rarely fail. It may even save the UK constitution one day. But they must be argued for openly and transparently to allow for the separation of powers, the rule of law, and checks and balances to be agreed.
The majority of speeches in this House supporting remain have highlighted the risks of change as we implement the new order. However, there is no no-risk option on the table. An unreformed EU from which we were diverging would be a significant threat to our future. Even under the threat of Brexit, EU leaders resisted the narrow proposals for change put forward by our then Prime Minister, David Cameron.
Finally, in terms of our own role, I really believe that we need to be careful in how we exercise our significant power in coming days. Political elites believing that they can discreetly manage constitutional change among themselves will rarely succeed. People are not fools and their representatives are not kings. We would do well to listen to their voice in the referendum and implement its result as best we can. The alternative for our constitutional democracy is, I believe, too unfortunate to consider.
My Lords, with so much already having been said, I shall limit myself to addressing the concern expressed by some of your Lordships about Henry VIII powers and statutory instruments.
There have been squeals of dismay from remainers, who claim that the use of these powers is an erosion of parliamentary sovereignty. I am bewildered by this sudden concern for parliamentary sovereignty. Being part of the European Union means that very sovereignty has already been surrendered, with our Parliament being subservient to an outside body. Regaining parliamentary sovereignty and independence is one of the main arguments for leaving the European Union.
It is not correct to say that Parliament will be bypassed by the use of secondary legislation. Change by statutory instrument is a parliamentary process. As such, Parliament, if it so wishes, can reject a statutory instrument. There is the further safeguard of a two-year sunset clause. There will also be a sifting committee in the Commons, with the ability to change a negative statutory instrument into an affirmative one. This underlines the ability of Parliament to call Ministers to account.
During the last 40 years, 8,000 pieces of law were passed using secondary legislation. Did any of today’s complainers about the use of secondary legislation complain then? What is even more astounding and shocking is that 12,000 pieces of European Union legislation were introduced into this country without parliamentary involvement, including such items as forbidding drinks manufacturers saying that drinking water cures dehydration. That might have raised the odd eyebrow had it been put before parliamentarians.
How can it be argued that the Bill erodes parliamentary supremacy when we lost it over 40 years ago? Leaving the European Union means regaining parliamentary independence. Only in the world of Alice in Wonderland could there be comprehension of the upside-down thinking where those complaining about an erosion of the power of Parliament are the very people trying hard to prevent sovereignty returning to Westminster.
It cannot be preferable to have laws made by an unelected European Union bureaucracy rather than our own Parliament. I join the many other noble Lords who have expressed this in hoping that we, in this House, are not so blinkered as to ignore the principle that this unelected Chamber should not oppose the express wishes of the electorate. These were clearly demonstrated in the referendum and in the last election, when both main parties included leaving the European Union in their manifestos.
My Lords, having stood on Hove beach with a cross-party group of MPs and campaigners in May 2016 to highlight the dangers to the environment of a leave vote in the referendum, sadly I find it necessary this afternoon to continue the argument I made then. Despite the Government’s rhetoric on the environment, there is a great deal more that this Bill will need to do to make those promises a reality. It is pertinent that that very beach was one that helped to earn the UK the nickname “the dirty man of Europe” when it joined the EU in 1970. Fast forward to 2018 and the beach is now one of 97% of UK bathing waters which have passed the EU quality test, thanks in no small part to the strict standards put in place at EU level.
We have to ask ourselves why, over the years, we have had to rely on EU directives to clean up our water, our waste, our air and our soil, and why we have had to rely on the 527 EU regulations that set standards for the environment and health protection, not to mention the 922 affecting agriculture and the 1,122 shaping a sustainable fishing policy. These have all played their part in transforming our environment, with the result that something like 80% of UK environmental legislation is derived from the EU. Therefore, it is no wonder that environmental and animal charities are concerned about what the future holds, and why we are keen to pin down the detail of the legislative transfer to UK law.
So we have to be concerned when, in the Commons, the Government voted against amendments that would have entrenched all the EU regulations in UK law, free from ministerial interference via their Henry VIII powers. Equally, their rejection of the precautionary principle and the “polluter pays” principle in managing our natural assets showed a disregard for the fundamental protections that have made the EU a global environmental leader. As we know, they rejected the animal sentience amendments, which have now been superseded by a separate draft Bill. Many would argue that that would have been completely unnecessary if only the Government had heeded our advice in the first place.
The Government would have us believe that they are now converted to the cause and that the environment is safe in their hands. Forgive us for being rather sceptical, because evidence is in rather short supply. Although of course we are pleased to have seen Michael Gove carrying his reusable coffee cup, I would rather have seen him wielding a comprehensive list of amendments guaranteeing that the environmental protections will be at least as good as those delivered by the EU in the past. So we will be supporting amendments that address that deficit.
In the debate yesterday it was argued that we now have three categories of legislation: primary, secondary and EU retained. I would add a fourth: the environmental principles currently set out in the introduction to EU law but not due to be transposed. For example, I have already referred to the precautionary principle, which is crucial in its application to pesticides. As we know, bee species and other pollinators are in decline, and evidence mounts that neonicotinoids are to blame. We need to heed the scientific advice and take urgent steps to protect our ecosystems before the damage becomes irreversible. Similarly, the “polluter pays” principle has been crucial in cleaning up our water supply, with water companies given large fines for polluting rivers and killing fish. This principle is an important deterrent for those who would otherwise be cavalier about their impact on the environment and put profit before people.
We will also be seeking guarantees regarding our continued involvement in the European institutions which have provided effective monitoring and enforcement of environmental standards. Organisations such as the European Food Safety Authority have been crucial in clamping down on misleading labelling and tackling salmonella and the horsemeat scandal. Another example is the REACH chemical regulation, which sets safety standards for trading and usage across the EU and stops toxic dumping.
Finally, and crucially, we will want to ensure that any new UK green watchdog is up and running by exit day, is placed on a statutory footing, is truly independent, and has the powers to fine Ministers when environmental rules are broken.
Organisations such as ClientEarth, which act on behalf of citizens, have been able to tackle illegal air pollution because they can take government to court. We have to ensure that access to justice, without prohibitive cost, remains in the new legislative framework. The Government have said that they are consulting on the composition of this new body but, like many other outstanding issues, it is vital that this is resolved and brought into legislation before exit day.
Many other environmental challenges arising from Brexit are not covered by this withdrawal Bill. We await details of the agriculture Bill, the fisheries Bill and even a separate environment Bill. It will be a real challenge to meet the timescales to deliver these before exit day and we need to be clear on what will happen if that deadline is not met. Therefore, we will seek guarantees that, on exit day, the whole package of environmental reforms is underpinned by the same protective principles that have provided such effective protection throughout our membership of the EU.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Jones, and to hear about the environmental protections she is concerned to protect. There have been very many eloquent speeches, and insightful remarks over the last couple of days. Many see the Bill as a technical process: a legal pathway, albeit complex and fraught with constitutional threats and dilemmas. But, to many, it is as much about the country we want to be, the values we hold, the beliefs we fight for and, not least, the people we serve. Omitting the European Charter of Fundamental Rights is seen by many as not preserving the rights of the people we serve and rejecting the values of fairness, justice and freedom. The provisions of the charter are wide-reaching: dignity, the right to life, right to care and rights of the elderly; freedoms, including freedom of thought, conscience and religion; equality, non-discrimination on race, religion and sexual orientation; rights of minorities; solidarity, employment rights, rights of association; and citizens’ rights and justice rights—rights to representation and advice.
The charter, as other noble Lords have said, also offers remedies when human rights are violated which are not available if the charter is to be excluded from the Bill. The Government’s explanation is that the substantive rights included in the charter are protected in different places in EU and UK law. However, legal opinion published by the Equality and Human Rights Commission is that failure to preserve relevant parts of the charter after Brexit will lead to the weakening of the current system of human rights protection in the UK.
In its recently published report that many Members have referred to, the Constitution Committee said:
“If, as the Government suggest, the Charter of Fundamental Rights adds nothing to the content of EU law … we do not understand why an exception needs to be made for it”.
The Joint Committee on Human Rights says that,
“the exclusion of the charter from domestic law results in a complex human rights landscape which is uncertain. Legal uncertainty is likely to undermine … rights”.
All of this should set alarm bells ringing for the future of human rights. For example, the National Union of Students is greatly concerned with any negative implications that removing the charter could have on students and on citizens across the country. Article 14 of the charter gives the right to an education for every individual, including “vocational and continued training”. With the removal of the charter there is a worry that new wording may mean that this no longer applies in the UK. Furthermore, the charter includes a number of vital protections for the most marginalised students, particularly LGBT, women, disabled and black students, who typically face barriers to engaging and succeeding in education.
Following the referendum, we saw a huge increase in hate crimes, with some parts of the country suffering more than a 50% increase in racial and religious persecution. There were also large increases in the persecution of people with disabilities and those in the LGBT community. We really need to ask how any diminution of human rights can be acceptable in the light of this. Yesterday evening I was struck by the remarks of the noble Lord, Lord Triesman. He asked who will suffer if all of this goes wrong. Who will be blamed? Who will be scapegoated? That is what we need to ask ourselves. The exclusion of the charter sends a powerful message that the poorest and most vulnerable citizens can expect things to change for the worse, certainly as far as the protection of their rights is concerned.
If ever there was a time that human rights needed full protection under the law, it is now, particularly in light of the cuts in local services. Minimal support is now being provided for the most vulnerable. Refuges for victims of violence are in crisis, advice on debt has been drastically cut, and the number of homeless and rough sleepers is soaring. All in all, the services that support basic rights are struggling for existence. The Government have pledged to scrap the Human Rights Act and replace it with a less robust British Bill of Rights and have been consistently sceptical about and resistant to attempts to extend human rights, so any weakening in this Bill of the legal framework to enforce human rights must be opposed and the charter needs to be incorporated with the rest of European law. We must not permit the weakening of human rights through the back door, rather we must retain the charter and its protections against violations of human rights. This is all the more important as the country faces a time of massive and unpredictable change.
I hope that this is not a matter of too much difference between Members of parties or of no party and I hope, given that many noble Lords have spoken about this issue, that we can work across the House to make sure that these values are upheld and the charter is retained in the treaty.
My Lords, my views on Brexit have not changed since our debate on
In short, I remain of the view that while we have been members of the European Union we have fared better and the country has been more prosperous at home, although there is room for improvement in the distribution of the benefits of that prosperity. Our country has been stronger in its standing and influence in international affairs. That would continue to be the case if we remained in the European Union, but it will not if we do not. I cannot simply dismiss and ignore all the analyses and forecasts which support this view. I do not have much confidence in sunny uplands. We live in a global and competitive world, and we should be favouring multilateral institutions and solutions, not pursuing unilateral, nationalist courses where we isolate ourselves. I fear too that leaving the European Union will prove to be a threat to the integrity of the United Kingdom as well as to the peace process in Northern Ireland and our relations with the Republic of Ireland.
When we come to consider the final proposals on Brexit, we shall need to consider how far the mandate of the referendum in 2016 still has authority. The campaign that led up to it was full of half-truths and fake information, and we now have much clearer knowledge and better information about the probable costs and consequences of leaving the EU than we had in June 2016. That, however, is not the issue for debate today. This Bill is about process, not policy: it is about how, not whether, we set about leaving the European Union. We shall have to come back to the existential decision of policy when we come to approve the deal that the Government will have negotiated with the European Union.
As this debate is showing, there will be plenty of important and difficult issues to be considered in Committee and on Report. I will concentrate on the proliferation of secondary legislation. For years, we have become accustomed to being asked to consider very large Bills, some with 200 or more clauses. It is impossible for Parliament, particularly the House of Commons, to give these mammoth Bills the scrutiny they deserve and that it is our constitutional duty to provide. Many of them contain many proposals for authorising the preparation by government of statutory instruments that convey delegated legislative powers to Ministers, with no opportunities for Parliament to amend them. Some of these instruments contain powers—the so-called Henry VIII powers—to vary or amend primary legislation. I suspect that we should call them the Cromwell powers, really, because Thomas Cromwell started it and it was gleefully taken up by Oliver Cromwell.
The steadily increasing resort to these statutory instruments has led to the steady creep of legislative powers being transferred from Parliament to the Executive. There are now several thousand new statutory instruments every year. Some of them do not require parliamentary approval at all. Many pass without being scrutinised by Parliament. Only some require parliamentary approval before they come into force, and then Parliament can only approve or reject them: it cannot amend them.
Section 2 of the European Communities Act 1972 provided for the incorporation of EU legislation into British law, much of it by statutory instrument. The Bill goes further than that, in that it would allow the Executive not only to confirm the incorporation of European law into British law by statutory instrument, but to vary it in doing so. This implies a large extension of the Executive’s power to make law without adequate parliamentary authority.
As a former civil servant I can understand the Executive thinking that Parliament has neither the capacity nor the resources to scrutinise all these statutory instruments meaningfully. As a parliamentarian now, I think that we have to consider very carefully whether, and if so, how, these instruments can be made subject to more effective parliamentary scrutiny and approval.
If we are to leave the European Union, this Bill is necessary to provide for the process of doing so. Like the noble Lord, Lord Hannay of Chiswick, I hope that it will be passed. It is an important Bill, to which we should give a Second Reading today. It will require—as we have seen in this debate—long and detailed examination in Committee and on Report. It also demonstrates some of the consequences which will follow the decision to leave the European Union, a decision which we shall have to review when we have agreement on the terms of our leaving and the conditions, costs and consequences of leaving are clearly established.
My Lords, there have been some excellent speeches from both sides of the House and on both sides of the issue. To be fair, as the 148th speaker I think that there is probably little I can add to today’s debate and that the best I can do as a contribution is to give your Lordships a gift. Do not worry—you will not have to put it on a form, as the gift will purely be of time. Please enjoy the six minutes that I am going to give back to your lives.
My Lords, I am particularly pleased to follow the previous speaker. Perhaps that six minutes should be in my entry in the register of interests.
It has, for many reasons, been with mixed emotions that I have sat through this debate. One reason is that I wish the debate was not taking place. I wish that we were not preparing to leave the European Union, and not leaving on the whims, prejudices, and architecture of the Eurosceptic wing of the Conservative Party, aided and abetted by the right-wing press. But politics is not about wishing; it is about having the courage to take difficult decisions—not necessarily to follow public opinion, but to lead and fashion it, to challenge it and to offer other options. I believe that politics is about having the courage to be unpopular and to do what is in the long-term interests of your country. It is to put country before party or personal advancement.
Yet, sadly, the debate has barely moved on. The lack of knowledge about how the EU functions, and the role of member state Governments within it, is as shocking as it is depressing. Some would have us believe that Governments are dragged against their will into the European Union and the Council of Ministers, where they make their democratic decisions. Neither is there understanding of the role and duties of the European Commission, given to it by the treaties, or the directly elected European Parliament, in which I proudly served for 15 years. This is either ignorance or, perhaps, wilful misrepresentation.
The EU was born out of the ashes of the Second World War: the ashes of people’s hopes and dreams, and yes, the ashes from crematoria that were dotted across Europe. A group of countries came together to ensure that history would not repeat itself—that we would never turn away again. It is a European Union that has at its root and core fundamental human rights and freedoms that are non-negotiable, even on accession into it. It is a union of countries and peoples joined by common principles and a united purpose: never to look away again and allow countries or peoples to be scapegoated or sacrificed. It is this European Union that we now turn away from, as we seek isolation while fooling ourselves and our citizens that it makes us stronger.
I say to my own Front Bench in another place that out of the European Union was constructed the single market, which has equality and fairness at its root and core, and that we should maintain our membership of that single market. But we are where we are. The country is divided and people feel left out, isolated and unwanted. EU citizens living here feel under threat, their futures and their children’s futures insecure in a country that they thought they could call home and where they could play by the same rules, abide by the same laws, and remain safe and welcome. How shamefully we have treated them and our citizens who live in other parts of the European Union.
Where once we served as a beacon of hope, fairness and decency, we are now viewed in a very different light. The glow has gone and this sceptred isle fumes with a narrow nationalism, promoted and stoked by the right-wing press—particularly the Daily Mail, with its threats and attacks upon any who dare in a democracy to think or vote other than the way that the Daily Mail or the Daily Telegraph believe that we should. Is it traitorous to pursue what you believe to be in the best interests of your country? Or is it traitorous to abandon your principles and your country, and surrender to threats from those who wield power without responsibility or accountability? Where is parliamentary sovereignty, when attacks are heaped on parliamentarians for exercising their democratic rights in Parliament? We live in strange times.
Many noble and learned Lords have spoken of the deficiencies in the Bill. Organisations such as Liberty, Amnesty, the Fawcett Society and so many more have given their recommendations and shared their concerns, especially around the issues of equalities, human rights and the dilution of democracy. I share their views. In the debate in my name in your Lordships’ House on
I want now to refer particularly to the recommendations that came from the Equality and Human Rights Commission. On the withdrawal Bill, it advises that we retain the UK’s equality and human rights legal framework as we leave the EU by including within the Bill the following. First, we should rule out the use of delegated powers to reduce equality and human rights protections. Secondly, we should include a principle of non-regression of equality and human rights law. Thirdly, we should retain the protections of the European Charter of Fundamental Rights. Fourthly, we should introduce a domestic right to equality. Fifthly, we should ensure that the United Kingdom keeps pace with developments in equality and human rights law by ensuring that our courts have regard to relevant EU case law after exit day.
In light of the Bill's twin aims of ensuring legal certainty and continuity, removing the charter and the right of action based on the general principles is wholly inappropriate. The charter secures important rights, as others have said: education, protection of the elderly, and equality rights—including, I say as a gay man, LGBT rights—which could be seriously undermined, as well as the principle of non-discrimination. The Bill must be improved, especially with regard to the charter and the equalities that currently exist. If the Government’s intentions are honourable then they should put the protections I have outlined on the face of the Bill, and not in worthless reassurances or in a committee which, to quote a Minister in correspondence, is merely advisory. The noble Lord, Lord Howell, spoke earlier about ambitions. My ambition is simple: the protection of rights that have been fought for across generations—and fought against—and which define a civilised country.
My Lords, I suspect that I am not alone in your Lordships’ House in having spent the last year being asked what I was going to do about Brexit. People who would be described as leavers have been asking why we are not getting on with it; remainers like me have been asking what I am going to do to stop it. With more than 180 speakers—as the noble Lord, Lord Porter of Spalding, has indicated—it is probably the case that everything has already been said. Unfortunately for noble Lords, however, unlike the noble Lord, Lord Porter, I still want to say it.
Of course, this is not an Act of Parliament to determine whether we leave the EU. Article 50 notice has already been given. However, this is probably the first opportunity that this House has had to try to influence negotiations: in my case, I hope, away from a disastrous hard Brexit. From the remain side, we clearly know what business wants. Banks and financial services companies want their ability to sell their services across Europe to remain unchanged.
I speak for the Liberal Democrats on manufacturing. It is also clear what the overwhelming majority of manufacturing companies want. First, they want a continuation of tariff-free access to Europe. It has been suggested that this is less necessary in the light of the drop in sterling against the euro. While it is true that the drop in the exchange rate, together with the uplift in world trade, has given a boost to our export sales in Europe, it is not the whole story. As noble Lords will be aware, many manufacturing companies import their components from the European Union, so the drop in currency has increased their costs. As yesterday’s figures from the car manufacturers demonstrate, there has been a significant drop in investment in the motor car industry since the referendum. What is clear to those of us on this side of the argument is that the so-called hard Brexit, with us moving to WTO rules, would be a disaster for our manufacturing industry.
Secondly, manufacturers want frictionless borders. Clearly, this is an essential requirement in Ireland, but it is also critical for the many manufacturing companies that employ just-in-time systems for the use of imported components, where pieces of equipment often pass several times across the border with Europe. Any system that involves hold-ups at the border would be disastrous, and industry has no real confidence that any proposed electronic border provisions would work. As we know, the introduction of IT systems by all Governments is not good.
Thirdly, manufacturers want continued immigration from Europe. Other speakers have mentioned the need for nurses, carers and workers in the leisure industry, but industry requires a continuous input of skilled workers. As my noble friend Lord Stunell would say, the construction industry will collapse without skilled workers continuing to come from Europe and there will be no chance of the Government meeting their housing targets. The so-called tech cities springing up throughout Britain require the continued import of skilled workers from Europe. The Government will say that we will soon develop our own skills base, but there is no chance that it will happen on any reasonable timescale. In any event, some skills are no longer taught in the United Kingdom. For example, many engineering SMEs need analogue engineers, but we now teach only digital engineering in our universities.
Fourthly, there must be certainty about how regulatory agencies will continue or be replaced. There are myriad European agencies whose regulations exporters will still have to comply with. Will we be setting up our own agencies at huge cost or will we retain general compliance with European regulations? The standard answer from the Government is of course that we anticipate agreeing continued arrangements, but will Europe agree?
Clearly amendments will be tabled in Committee from across the House to reflect the wishes of business that I have just expressed. Manufacturing industry would certainly support an amendment that said we should stay in the single market and the customs union. I will support an amendment to provide for a further referendum on the terms of any deal, for which a number of noble Lords have indicated their support. As noble Lords have indicated, the ICM poll for the Guardian last week showed that well over 60% of the public now want a further referendum on the terms of leaving. It was noticeable that the only age group against the idea of this referendum is the retired—that is, people who no longer play a role in the business life of the country and have the smallest stake in our future. I hope the Government will now agree to give the electorate what they clearly want.
My Lords, I voted remain in the referendum not for any great love of the European Union and its institutions but for the reason described by my noble friend Lord Armstrong of Ilminster: our future is about being connected with others in this very connected world and we will be stronger for it. Indeed, I recall the Select Committee on soft power’s report, which described the positive future for the UK as the best networked country in the world. In many ways, we could be the best connected country in the world and that would be a strong place for us to be, so it is sad to see that we are stepping back from the European Union and Europe at the same time as we seem to be stepping back from other areas of our international role, including international development. We are doing it just at the point when, it seems to me, the people we have been aiding and working with in low and middle-income countries are beginning to gain some political power that may help us in future.
Like other people who voted remain, I wish to move on, and the aim is to get the best deal we can in every sector in the negotiations that are under way to ensure that we can have as positive a result from Brexit as possible. Like other noble Lords, I have interests in some specific areas that need to be given detailed scrutiny. In my area of health, I have a number of concerns, some of which have already been mentioned. I shall list a few. There is the big question of securing continuity of staffing for health and social care, research and the scientific community. This is the greatest vulnerability facing the health system in this country and one that we need to make sure is protected. In addition, there is access to research funds and to research collaborations with our partners in Europe, which are so important. There is reciprocal healthcare between ourselves and our fellow citizens of Europe, as we now are. We need to understand how all these issues are affected by the provisions of the Bill in detail and in practical terms. I am sure we will come to that.
One specific area is the importance of public health safeguards and provisions. Before going further, I note that I am indebted for advice on this matter to the Faculty of Public Health—I declare an interest as an honorary fellow. Public health in the broadest sense encompasses everything from pollution to health services: everything that affects the health of the population. It is vital to our health and well-being, critical for the sustainability of the NHS and social care, and will of course contribute to the long-term productivity and prosperity of our nation, not least by ensuring that we have a healthy workforce but also by ensuring that we are able to compete on a global stage by providing the support for the country’s vital biomedical and life sciences sector, which will be so important in the future. It is good to see that the Government are supporting this sector in a positive way.
As we all know, diseases know no boundaries, and I am pleased that the Secretary of State for Health has outlined his commitment that the Government will aim to maintain UK participation in European co-operation on areas such as disease prevention and public health. Although this assurance is welcome, we will need more specific commitments. I hope the Minister will offer reassurance to the public and professionals that the Bill will “do no harm” to the public’s health and that no provision introduced as a result of it will widen inequalities or increase pressure on the NHS and social care. This is important, and I believe other noble Lords will table an amendment to the Bill seeking a commitment to maintain a high level of protection for public health through all their legislation. Providing this reassurance in the Bill would be consistent with the Government’s intention to provide certainty and with their commitment to improve the population’s health.
My Lords, I declare my interests as set out in the register, in particular as a partner in the global commercial law firm DAC Beachcroft and as chair of the British Insurance Brokers’ Association.
As we all know, the purpose of a debate at Second Reading is to discuss the principles underlying a piece of proposed legislation. Rarely in my experience as a parliamentarian has it been more important for us to be clear in our minds about what a Bill is and what a Bill is not. This Bill is not designed to initiate Brexit, as my noble friend Lord Ridley so forcefully pointed out yesterday. It is a vehicle for dealing with the consequences of Brexit, and for maximising the opportunities we derive, while minimising the risks and potential collateral damage. As my noble friend Lord Hill of Oareford said:
“In some ways, it is quite a boring Bill”.—[Official Report, 30/1/18; col. 1388.]
But as my noble friend the Leader of the House stressed at the start of this debate:
“It is vital to a smooth and orderly exit from the EU… to honour the referendum result”.—[Official Report, 30/1/18; col. 1373.]
In the absence of the Bill, legal rights would inevitably be affected overnight, in a disorderly fashion, which would critically undermine the rule of law and almost certainly overwhelm our courts. Of course, much so-called EU law does not need the assistance of the Bill to remain in force. It has been passed in primary or secondary domestic legislation and does not, or does not exclusively, derive force from the EU treaties or the European Communities Act 1972.
I commend to the House last week’s report by the Constitution Committee, of which I have the privilege to be a member, and welcome the comments that have been made at various stages of this lengthy debate about our recommendations. In contrast to the hyperbole attendant on the release of our report, the possibly less exciting reality is that it provides helpful and positive suggestions to ensure the Bill does the job for which it is intended: helping to ensure Brexit can be made as smooth and painless as possible. It also potentially creates the basis for a consensus on how to make the best of Brexit. My noble friend Lord Strathclyde was right to advise:
“If the Bill is to be amended, then let it be done with co-operation and consultation between Back-Benchers and Ministers”.—[Official Report, 30/1/18; col. 1408.]
Such a consensus would greatly enhance our negotiating position.
In dealing with retained EU law, this Bill is necessarily origin-focused and content blind, which could have arbitrary, unforeseeable and, sometimes, undesirable effects. There must be a significant body of EU-derived law which the UK would have adopted in any event, in the same or very similar form. Obvious examples that have been mentioned are to be found in the equalities field and financial services regulation. The practical need for at least some so-called retained EU law post-Brexit does not, of itself, justify creating an executive correction power, still less prescribe the precise scope or form of any such power. We must ensure that any correction power is compatible with the vital principle that the Executive must be genuinely accountable to the legislature.
Many fear that one unintended consequence of Brexit could be the emasculation of the UK financial services sector. It is vital that the UK, in negotiating a new free trade agreement with the EU, ensures the unbroken maintenance of mutual market access for financial services, ensuring continuity of cover and protection. A suitable transition period will be vital, and so too will mutual recognition of prudential regulatory regimes. Both motor and travel insurance require special attention too. I hope we shall maintain a free circulation zone without reintroducing an onerous green card requirement. Like the noble Lord, Lord Crisp, I also very much hope this Bill will help enable the UK to maintain a reciprocal emergency health agreement with our friends in the European Union.
This Bill is but one part of a testing and complex process—a vital part, but one of many. The road ahead is uncertain and it will be challenging to us all. I believe, however, that our debates here in the next few weeks will show this House at its serious, erudite and constructive best.
My Lords, unlike the noble Lord, Lord Hague of Richmond, who brought two new items to the debate, I do not anticipate that I will add anything new. There have been some outstanding contributions and I particularly commend the outstanding speech from my noble friend that we have just heard.
Yesterday I was particularly moved by two speeches. The first was the speech from the right reverend Prelate the Bishop of Leeds. We have heard much in these debates about the will of the people, and it behoves us to listen to what he said about trying to know and follow the will of God, rather than focusing so much on humanity. He suggested that we should know what Brexit is about, where it is taking us, what kind of society we are seeking and how to get out of this confused and divided country in which we now find ourselves. He gave us much food for thought and I am most grateful for what he had to say. I, too, originate from the north—I come from Wakefield, which is part of the right reverend Prelate’s diocese. I was born working class in a council house, and now, a bit like the noble Lord who will be replying, I am living down in London after quite a journey.
The Brexit vote laid bare divisions in society which many of us had not fully appreciated. In Wakefield, 66.3% of the people who voted opted to leave the European Union—similar demographics to the people who voted elsewhere for Brexit. Some of the strongest support for Brexit was in struggling areas, where average incomes, and average education and skills levels, are low and there are few opportunities to get ahead. Working class communities in Britain have been left behind by rapid economic change, and feel cut adrift from the mainstream and marginalised in many places. Their types of opportunities and life experiences contrast sharply with those in areas that are filled with more affluent, highly educated and diverse populations, as we find here in London, which gave some of the strongest support to remaining in the EU.
People move to cities such as London, as I did, to get jobs and leave communities behind; they are involved in a brain drain, which increasingly creates further inequalities in those communities. Those communities also have health inequalities. The noble Lord, Lord Crisp, talked about the necessity of maintaining equality of standards of health, and further improving it. My fear is that Brexit, if anything, will undermine the standards that we presently have and make matters worse. I hear, too, that we have a deal with the Americans, and that the one thing they are particularly waiting to do is to move into the NHS and get their hands on many of the operations there—which in turn is not likely to improve the lives of the disadvantaged of whom I speak.
The reality is that these communities will probably be the worst hit by the economic consequences of Brexit if we end up with a bad deal or, even worse, no deal at all. I would like the Minister to say what he thinks the future looks like in the area from whence he comes—whether it is going to look better than it has been in the past, and when it is likely to look better as a consequence of Brexit, which he so strongly supports.
The other speech that hit me very strongly indeed, and I believe is in the newspapers, too, was that of the noble Lord, Lord Bridges of Headley. He had previously been involved in government negotiations and yesterday he strikingly described the dangers to the country of drift, indecision and weak leadership. He reminded the House that there are choices and that early decisions need to be made on them, that time is running out and that, without clarity on direction in the negotiations and within government, there is a risk that the UK might crash out of the EU with a very poor deal or no deal. When we listened to the debate a couple of weeks ago, so many contributors from the opposite Benches actually favoured that prospect. I believe that that is of great concern to those who are worried about inequalities and divisions in the country. It would be a disastrous outcome for us. We need to be as close as we can to being in Europe—or, as some might prefer, in Europe.
A bad deal would bear down very heavily indeed on the disadvantaged areas around the country, and it is time that the Government prepared themselves for giving an explanation to those parts of the country which voted leave of just what the consequences might be if we found ourselves in such a position. That is a question that I put to the Minister a couple of weeks ago during Oral Questions. A bad deal or no deal cannot simply be accepted by us. We have to have a look at how we would handle it, and I believe that we are moving bit by bit towards trying to find a mechanism whereby the people will have another say. It may be in another referendum—and that leads me to the third speaker who greatly influenced me yesterday, my noble friend Lord Adonis. If he pushes his amendment to a vote, I shall support it, even though it is in conflict with what my noble friends on the Front Bench want.
Another alternative course is that we may find ourselves, with all the divisions in the Government, moving towards a general election. If that is the case, this will again provide the opportunity for the people to have a second view on whether the terms for coming out of Europe are acceptable—or, in turn, whether they wish to remain in Europe.
So there is nothing new from me today, just an expression of worries—increasing worries since I last spoke on the European issue because matters have got worse, not better. The country has become diminished and looks worse in the eyes of others. For those who are thinking and worried about it, it looks worse from inside, too. I hope that we can get back on track and find a way through, and we must ensure that the people are involved in whatever the final outturn is.
My Lords, I deem it appropriate that I am speaking in the presence of my noble friend Lord Pannick and noble and learned friends Lord Judge and Lord Hope, because I am going to confine myself to Clause 5(4) and (5), which state that the European Charter of Fundamental Rights is not a part of domestic law on or after exit day.
The charter is a novelty, which has only been seen to apply directly in this country since 2013, as the UK, under Prime Minister Blair, signed up to Protocol 30 —an opt out. This opt out was ignored by the European Court of Justice, a warning of things to come. It started as a political declaration designed to give common values to the states of the EU and build a platform for more integration. It morphed into a document with legal status, as explained by the House of Commons European Security Committee report in 2014, The application of the EU Charter of Fundamental Rights in the UK: a State of Confusion. It recommended primary legislation to disapply the charter from the UK by way of an amendment to the European Communities Act 1972. When one reads the Commons report, explaining how the charter would broaden the ambit of EU law, its uncertain distinction between rights and principles, the hazy scope of its application and the effect of having parallel rights in the charter and the European Convention on Human Rights, it becomes clear in the end that the inclusion of the charter after Brexit would cause more confusion and less certainty for business, impinge on the sovereignty of Parliament in an unprecedented way, and could open the door to eternal subjection to the ECJ and EU legal supremacy. Maybe that is what the movers of amendments to keep the charter in place intend.
The charter was also intended to protect the citizen against overmighty EU institutions, not necessarily against his or her own state, for states have their own democratically enacted rights laws. This was explained by the noble and learned Lord, Lord Goldsmith, in his evidence to the aforementioned committee. The then Lord Chancellor, Mr Kenneth Clarke, was equally dismissive in his evidence to European Sub-Committee B in 2011, when he said,
“the charter … is of more political and public presentation … than it is of deep significance, because it does not actually change anything”.
It is odd that those who are now so determined to preserve it were once so clear-sighted about its insignificance. Yes, it has changed, but it has changed for the worse.
The charter is insignificant in another way, too. What a failure it has been in upholding—let alone extending—democracy and freedom in great swathes of Europe. Poland is undermining human rights and the rule of law. The latest Freedom House report slates many EU states for turning back from civil liberties and political rights. In Hungary, Austria, Croatia, Romania and other European states, judicial corruption, intolerance, xenophobia, racism, domestic violence and crime are on the rise. Extreme right-wing parties are on the march in Germany and Greece, and France has extended its state of emergency for the fifth time. So much for the efficacy of the charter. And it has happened on our watch.
This debate should be about our values. The EU puts a price on everything, but I do not discern its values. We have heard in this House that the Government do not know their destination. But what is the EU destination, save “more Europe” on the sat-nav and taking every road to the extreme right? No positive case could have been made for it during the referendum, because its failures in, inter alia, the euro and management of migrants demonstrate its lack of political virtue.
The most radical and dangerous element of retaining the charter is that it would uniquely give judges the power to disapply Acts of Parliament, not just declare them incompatible with human rights law, as is their remit under our Human Rights Act. If the charter is not removed from our law, our courts will be invited to limit or ignore existing law or EU incorporated law by reference to the list of rights—many of them vague, many of them simply aspirational, such as the independence of the elderly. I am pleased to note that my noble and learned friend Lord Brown supported this view.
We ought to be proud of our commitment to and long history of human rights and the rule of law in this country. Lord Reed explained in his famous judgment in the UNISON case in 2017 that the rule of law means that this Parliament makes our laws, its members are chosen and accountable to the people, and the courts enforce those laws. Brexit means that we return to that position and to our leadership in human rights.
We should ask ourselves whether each one of us feels that his or her rights are better protected by European law or by the Supreme Court. The core of the argument against inclusion of the charter is that it would bring into our law a set of rights and principles not enacted by Parliament—not subject to the usual debate and testing of public opinion—and its scope and meaning would change as it was interpreted by the European courts after Brexit, so we would be bound for all time by a set of norms over which we had no control and no part in shaping—a charter designed for an institution we had left. Those who are so determined to uphold parliamentary scrutiny by limiting Henry VIII powers ought also to appreciate that the inclusion of the charter keeps that king’s approach for ever.
My Lords, unlike the noble Baroness, Lady Deech, who I am delighted to follow, I will be general with my comments, although I hope that my arguments will be focused.
Now that Article 50 has been served in response to the outcome of the referendum, we are thereby tearing up our agreement with the other EU member states. As a result, both sides are looking beyond Brexit—through exit, to the world beyond. Naturally, everyone is trying to secure advantage for themselves. No matter what we do next, be it wise or foolish, it is always better to try to do things sensibly. I entirely agree with those who argue that the right starting point is to aim to parachute the acquis into the post-Brexit UK legal system—into which it will morph—and that that has to be done seamlessly but at the same time entirely in line with our constitutional settlement and traditions. It sounds easy, but it is not, as the Select Committee on the Constitution so helpfully pointed out in its serious strictures about the Bill. Parliament must handle these matters in accordance with the customary democratic practices of this country. There is simply no scope for exceptions. I do not want to comment further in any detail at this stage; much has already been said, and a great deal more will be, in Committee and on Report and I will be inclined to support a number of amendments.
We all know this is happening in the midst of political turmoil. In a more aggressive age or country, I dare say there might be civil war or violence on the streets. Society is split down the middle. When all this is over, the nation will need to coalesce again. In the meantime, there are real worries among all categories of opinion. It seems to me that the manner of the future of the conduct of public business may be of equal importance as its substance, because the eventual outcome must be seen as legitimate, not least by those who disagree with its merits. Rules of procedure, which sometimes seem—and in reality often are—pedantic and dull, are put in place not least to protect the weak and minorities. If they are ignored or rolled over roughshod, longer term disconsent is embedded, to the disadvantage of these groups.
Ironically, it only occurred to me during this debate, because it was a point made by others, that if the European Communities Act is a kind of Henry VIII clause writ large, then so, perhaps, is the referendum Act. In both cases, Parliament remains the guardian of the constitution, the process and its outcomes.
One of the characteristics of the referendum on whether we should leave the European Union was that it was a binary choice. Leaving the EU may be a binary choice, but the consequential negotiation of a deep and special relationship is not. The two are intimately and irrevocably connected despite being clearly distinct. At the time of the referendum, advocates of leaving were—and still are—irreconcilably divided about what comes next. It seems to me that what happens next is, by any constitutional analysis, a matter for a sovereign Parliament, which must not loosen its control over how things may develop. I have no idea at all what will happen, but I suspect that anybody who says they do is deluding themselves or trying to delude others.
As I said, Parliament is sovereign in this country. It must impose its control over the politics of what happens next; it must be unshackled in doing so and be allowed and enabled to decide how matters move forward in whatever way it deems best at the time those decisions must be taken. That seems to be the only acceptable and meaningful effect of the words “meaningful vote”. That, however you look at it, is called taking back control.
My Lords, we are in the final straight and much has been said already. Inevitably, our debate today and yesterday has not been strictly limited to the terms of the Bill, which has been described—correctly—as a technical process Bill, necessary to ensure a smooth and orderly transition out of the EU. I entirely accept the need for such a Bill, but it was not supposed to cause a rerun of the referendum debates, nor the Article 50 process. However, that debate has proved irresistible to some, including me.
Like many Members of your Lordships’ House, I voted remain in the referendum. I did this for a variety of reasons: most authoritative economic forecasts predicted higher growth if we stayed—a matter seemingly confirmed currently if press reports are to be believed—but principally because I am comfortable with the deep and special relationship that exists at the moment between the UK and other member states. It is a relationship where we work together to improve the economic, social, cultural and environmental well-being of some 740 million people—a relationship that, by and large, has fostered peace and prosperity.
I have not changed my mind since June 2016 and I have looked on with sadness and increasing anger as we stumble through the consequences of the decision to withdraw, undermining our standing in Europe and the world, with Ministers squabbling—making a nonsense of strong and stable government—and the internal wrangling of the Conservative Party failing to offer a vision for what they see as a post-Brexit world. With the benefit of hindsight, I consider that the referendum was an inappropriate mechanism to determine such a complex issue as our future relationship with the EU—certainly without thresholds and detailed impact assessments. Neither remainers nor Brexiteers could seriously have predicted the full range of consequences from and the complexity of leaving. I certainly did not.
Although we can lay this fateful approach at the feet of David Cameron, do we not bear some collective responsibility for not bringing greater challenge to this process? But we are where we are. A referendum was the decision mechanism offered to the voters and they are entitled to see it respected. However, this should not preclude them from having a chance for second thoughts when they have the detail of the negotiation outcome. How and when that second chance should be available, for how long we can assume Article 50 can be reversed, and whether the second chance should be by way of a further referendum or a general election will not be settled by this Bill. But either deserves at least consideration.
I support the approach to this Bill, which my party has argued should be an enabling measure and which should reinforce the Prime Minister’s commitment to hold a vote in Parliament before the European Parliament considers the agreement. I also support it seeking a temporary extension to participation in the single market and customs union on current terms—indeed, the longer, the better. Further, for myself, I hope that somewhere along the line we may find a way to offer the British public an opportunity to determine whether they wish to change their mind and remain in the EU, or at least the single market and the customs union.
So far as the Bill is concerned, as others have said, it is complex and dense and unconstitutional in parts. We should be grateful to the Select Committee on the Constitution for its formidable analysis which will better enable us to carry out our role to scrutinise and revise.
On points of detail, other noble Lords have already expressed concerns over what the future may hold for workers’ rights. In Committee, I propose in particular to pursue related matters of health and safety and enhanced protection for EU-derived rights. It is true that most EU-derived health and safety laws are already transposed and will therefore be retained, although the REACH provisions will need an equivalent UK version. But the change in the status of the health and safety provisions is that under these proposed arrangements they can in future be changed just by secondary legislation. Currently, they are underpinned by the European Communities Act 1972.
We can be proud of our health and safety record. As our briefing from the TUC records, EU standards have led to the introduction of broad duties on employers to evaluate, avoid and reduce workplace risk. EU directives have also led to safeguards in high-risk sectors such as construction. The health and safety system in the UK has been separately reviewed and broadly supported by a number of reports: the review of the noble Lord, Lord Young, Professor Löfstedt’s review and the HSE’s triennial review. We should acknowledge that the Government are on record as committing the UK to continue to guarantee health and safety regulations but, of course, we do not know who will be pulling the strings in the future. We do know from prior experience that some in the Conservative hierarchy have a deep antipathy to aspects of health and safety. We must keep a watchful eye on this and seek enhanced protections.
I conclude with a final observation. The project to withdraw from the EU and untangling more than 40 years of shared history is engaging a substantial national effort. Apparently, the brightest and best of the Civil Service are engaged on it, cross-government activity is enhanced, new legislation is kept to a minimum, the routine business of government is pushed to one side, parliamentary time is almost unlimited and, as we have seen over the last couple of days, record numbers of Peers are participating in our debates. This is as it should be in my view, but why on earth can we never seem to manage the same national effort and focus when we are dealing with the desperate needs of the homeless and the poor in our country?
My Lords, in opening what many of us believe to be the most important debate in any of our lifetimes, the Lord Privy Seal the noble Baroness, Lady Evans of Bowes Park, spoke of this Bill as ensuring that,
“we have a functioning statute book on the day we leave. It is about providing certainty and continuity for people and businesses. It is about ensuring that people’s rights are upheld and legal protections are maintained”.
She went on to say that,
“as far as practical, the same laws will apply the day after exit as the day before”.—[
I want to talk about a group of people living in our country—namely, children—and about people not yet born. If the comments of the noble Baroness, Lady Evans of Bowes Park, are to mean anything, we must ensure that laws are also in place to protect the rights of the child the day after exit—children’s rights. Much of the hype about what withdrawing from the European Union will mean for the United Kingdom is about taking back control of our future. A critical part of our future depends on our children, who will have to live with the consequences of our actions.
While a large number of us in this place are not supporters of withdrawing from the European Union—if, indeed, we do take that final step—we must, and would surely want to, protect and enhance the rights of every single child. Currently, three mechanisms operate together to ensure that children’s rights are protected: the UN Convention on the Rights of the Child, the European Charter of Fundamental Rights and the European Convention on Human Rights.
Domestically, as far as I understand it, no explicit commitment to children’s rights exists at government level. While the Human Rights Act 1998 offers some protection for our children’s political and civil rights, its provisions do not reflect the full scope of the UN Convention on the Rights of the Child. It was so important that the noble Baronesses, Lady Massey and Lady Lister, and the noble Lord, Lord Russell, talked about the rights of the child in yesterday’s debate. The right reverend Prelate the Bishop of Leeds spoke of the Brexit debate being clothed in purely economic terms, as set out on the now infamous battle bus with its livery of £350 million. We have also heard much before and after the referendum about the need to protect borders, trade and British values. But, as a country, the UK must also protect children and their rights.
Young people very much regard themselves as European. As a matter of fact, 71% of 18 to 24 year- olds voted to stay in the EU. That is perhaps why the Government were reluctant to give the right to vote to 16 to 17 year-olds. Under the Erasmus programme, thousands of EU students annually go to study in another European country for up to a year funded by the EU. In 2015, for example, 30,000 young people came to study in Britain and 40,000 Britons travelled to learn in other European countries. Although we are in the programme until 2020, what happens after that date is anybody’s guess.
Of course, young people in Northern Island will be able to study, work and play in Europe unrestricted after Brexit by virtue of the Good Friday peace agreement, which allows them all to have dual nationality. Do noble Lords remember the high drama over the frictionless Irish border issue, with the Prime Minister flying to Brussels early in the morning, having secured a fudge—sorry, agreement—from the DUP, the same DUP which wants Northern Ireland to be treated in exactly the same way as the rest of the UK? How does that work, when Northern Irish residents will be able to travel to the rest of Europe unhindered, while citizens in England, Scotland and Wales will not be afforded the same rights? Perhaps the Minister, who avoided the question asked by my noble friend Lady Walmsley the other day, might answer that directly at the end of this debate.
I end where I started. I very much hope that the Minister will agree with the noble Baroness, Lady Massey, who said in yesterday’s debate:
“We should expect from Ministers a commitment to have due regard to the UN Convention on the Rights of the Child, and this should be incorporated in law”—[Official Report, 30/1/18; col. 1438.]
that is, UK law.
My Lords, I hope that I will not annoy any Members by deliberately putting myself out of order, particularly with the Treasury Front Bench, but I hope that the unusual incident at Question Time will none the less result in the noble Lord, Lord Bates, reconsidering his decision and remaining on the Front Bench. Apart from his invaluable merits, he is such a rare example of a popular Conservative Minister. Therefore, it is even more important for him to be retained on the Front Bench. I should not have made those remarks and apologise for having done so.
I thank the noble Lord, Lord Storey, very much for placing an emphasis on children—that is the first time that has occurred in this debate—rather than on the 16 and 17 year-olds who we always think about. It is such an important issue for the future of this country.
The issue we are discussing is not just a nightmare, it is the greatest tragedy to have faced our country in the whole post-war period. The Bill itself is yet another detailed reminder of the great tragedy unfolding before our very eyes. Like Ian McEwan, I find it hard to believe that we are not dreaming a nightmare—that it is not happening. But it is happening before our very eyes. While I defer to the huge assemblage of constitutional and procedural experts in our House, who I hope will guide us into safer territory on this truly miserable, but unfortunately necessary, Bill, I have no enthusiasm even for seeing its passage sustained and returned to the Commons, for it is part and parcel of the incompetent and selfish Government we have to endure for at least a bit longer, alas, under our clumsy system, where defiance of wisdom and common sense is now the daily government routine.
Our colleagues in other EU countries cannot believe that this is happening either. They think we have gone mad, and after the PM’s catastrophic blunder with “Brexit means Brexit,” for which she still has to ask forgiveness, the Government have no authority whatsoever for pursuing this insane course of action simply because she is scared to death of Boris Johnson and even—would you believe?—Jacob Rees-Mogg. She might have had a mandate before the last election, but the
The PM now goes off to China to avoid scrutiny at a bad time, when sensitive documents have been falsified and concealed, but more and more people in Britain now, at long last, realise that the whole farce is coming to a head in certain, painful inevitability. Meanwhile crushing, pressing domestic problems are ignored: a huge housing crisis, a crisis of poverty and inequality, a crisis of rough sleeping in unprecedented numbers, a crisis in our National Health Service—all ignored by this Prime Minister obsessed with only one subject, Brexit. This will be revealed when the trade part of negotiations resume after the European Council takes place in March.
In my recent PQ on trade deals to the Minister on the Front Bench, I asked if the exercise in total insanity of having to negotiate now up to 70 new agreements with countries which already have agreements with the EU will take place after
There is no need at all for the exasperated EU negotiator and his colleagues in the EC and the Council to seek to help us out of a crisis of our own creation, thanks to the handiwork of the most maladroit Prime Minister in the whole of post-war history. Meanwhile, the long-suffering British people are enduring the derision of the rest of the world, with the dodgy exception of the worst President in US history. Eyebrows are still raised here and in the EU about the artificial and pork-barrel opportunism of the immoral agreement, after a £1 billion bribe of taxpayers’ money, to the Northern Ireland DUP, an unsavoury bunch of extreme right-wing Protestant enforcers, led by an equally questionable First Minister.
I live in France as well, and in countries like that with a sensible framework for good governance and a written constitution, such a deal would probably have been deemed out of order by the council of state and maybe even the constitutional court.
It is a circumstance of the urgency and the emergency in this country of this great and unfolding tragedy.
I appeal today, therefore, to the cowed bunch of pro-EU Tory MPs, for whom I have great respect, to find the strength to put country before party and save Britain, especially for the younger generation of our citizens, who are also citizens of the EU under Maastricht. They and others too, who are older, deserve better. They understand, like all the other member states, that individual sovereignty within the union goes hand in hand with collective sovereignty. They are proud of the collective power that this gives each member state. Even small member states are proud of that combination of national and group sovereignty.
There is still time to reverse this utter madness. The Lords needs today to send out the crucial message of modernity and the future together. I came into politics as a humble helper of Edward Heath, who bravely took us into membership with the critical help of 68 Labour and other MPs. I pray that this time, too, the Labour Party from now on, led by Jeremy Corbyn and others, will rise to the occasion to save Britain when the time comes.
My Lords, I should start by confessing my membership of the Constitution Committee. I say “confess” because, as the noble Lord, Lord Beith, mentioned, Monday’s Daily Mail took the committee to task to some degree, describing it as a committee filled with “Remoaners”. As noble Lords may imagine, this came as something of a shock to me. I had not before realised this until I read it in the Daily Mail—and I must say that it has shaken my faith in the Daily Mail as a paper of record.
This debate has been conducted in a generally constructive way. That is the spirit in which the Constitution Committee approached its task. Our report proposes,
“a number of practical measures to address the flaws in this Bill without jeopardising the achievement of its objectives”.
No matter how you voted in the referendum, “taking back control” is a powerful idea, so we should use this moment to strengthen our democracy and the sovereignty of this Parliament. Our report, I think, points the way. For example, it recommends that the Bill clarify—as the noble Baroness, Lady Taylor, and the noble Lord, Lord Norton, explained yesterday, and to which my noble and learned friend Lord Mackay of Clashfern gave his benediction today—the status of retained EU law as primary legislation replacing what the report describes as,
“the ill-fitting ‘supremacy principle’—a European legal concept”, with the UK domestic principle of the primacy of the most recent Act of this Parliament. Where we can safely replace in this Bill the risk of confusion with greater clarity and European legal concepts with British ones, we should do so.
I will focus the rest of my remarks on the Bill’s devolution implications, which many other noble Lords have touched on. Like every unionist I want to ensure that, as we leave the EU, we do not inadvertently jeopardise our union of four home nations. Indeed, handled carefully and sensitively, the process of exiting the EU can strengthen intergovernmental relations within the UK and give our union a renewed sense of purpose.
In the case of Scotland, it is notable that, contrary to expectations, not least of the SNP Government, Scottish opinion has, if anything, swung against Scottish independence as the exit process has continued. The Bill confers on the devolved Administrations powers parallel to those of UK Ministers to correct deficiencies in devolved areas. Clause 11, however, amends the devolution statutes to restrict competence in relation to retained EU law.
Clause 11 has been criticised as a UK Government power grab and as offending a fundamental principle of devolution, where what is not explicitly reserved by the UK Parliament is devolved, as the noble and learned Lord, Lord Wallace of Tankerness, noted yesterday. The Government have explained Clause 11 as being transitional, to provide an orderly process for agreeing with the devolved Administrations where powers repatriated from Brussels are best exercised and what common UK frameworks are needed, and to do so in a way that both respects devolution and protects the integrity of the UK single market—a market which, in the case of Scotland, accounts for 63% of its trade.
As a former Minister with some recent involvement in these matters, I accept that I am perhaps more inclined than others to accept the Government’s assurances at face value. Certainly, the UK Government’s recent devolution record is not the behaviour of power-hungry centrists—quite the opposite. However, I also accept, like many others on all sides of the House, that Clause 11 needs amending. As one of the witnesses who gave evidence to the Constitution Committee put it,
“Clause 11 stacks the cards in favour of the centre”.
Clause 11 unamended would mean that if common frameworks cannot be agreed, the default will be that power remains at Westminster, and what is intended to be transitional will become permanent. We need a clause that is more balanced and which gives the UK Government and the devolved Administrations similar incentives to reach agreement. So I welcome the Government’s commitment to amend Clause 11, and to do so with the support of the devolved Administrations.
But in considering Clause 11, I hope the House will bear in mind two things. First, the 1998 devolution settlements were drawn up on the assumption of EU membership. As such, devolved Administrations are already constrained within their areas of competence. They cannot make law that is incompatible with EU law. As the noble and learned Lord, Lord Hope, noted in a debate last Thursday, removal of this constraint will leave a void, providing, as he put it,
“a wonderful opportunity to create something new”,—[
Secondly, just as we should avoid stacking the cards in favour of the centre, so we should also avoid stacking the cards in the opposite direction. If absence of agreement means that all powers flow, come what may, to the devolved Administrations, their incentive to reach consensus going forward will be weaker. Moreover, I do not believe that one part of the UK should have an effective veto over essential measures to protect the interests of the UK as a whole—interests that this Parliament exists to uphold.
I conclude on an optimistic note. The devolved Administrations accept that common UK frameworks are needed, and the UK Government recognise the importance of obtaining their legislative consent for the Bill. That is a good foundation on which to build agreement. I hope that it can be built quickly; I believe it can.
My Lords, I declare an interest as a remainer and I will focus on the deficiencies of the withdrawal Bill in respect of environmental issues and how they must be addressed. But, to be honest, it grieves me considerably that we are going to spend months of effort simply to ensure that we get back to where we started on EU legislation—all this just to keep the laws we worked hard to shape and develop in the past 40 years. It reminds me of that bit in Winnie the Pooh where Pooh and Piglet wander round in circles, lost in the woods, before they finally come back to exactly the same point. Pooh says—as only he can:
“I’m not lost for I know where I am. But however, where I am may be lost”.
This could be a good motto for the Government in their dealings with Brexit.
Proponents of Brexit will of course say that the benefit is taking back control of legislation. But the reality is that, with every trade deal we strike in the post-Brexit world, we will be agreeing to surrender some sovereignty over standards of many kinds. That is the nature of collaborative international agreements.
So the people have spoken—well, just over half of them have—and they may well speak again. In the meantime, the task in hand with the Bill is to bring safely across into UK law the 80% of our legislation on the environment that is European. We have taken a major role in the past in developing these laws within Europe and shaping them over the last 40 years, and they have considerably raised environmental standards so that people can enjoy cleaner beaches, cleaner air and water, better safeguarding from chemical hazards, and improved protection for wildlife and habitats. The noble Baroness the Leader of the House says that the Bill is simply technical and transfers all that effectively—but it does not. It will need considerable amendment.
On environmental legislation, the Bill fails to transfer across important environmental principles that have informed policy, law and judgments over the years. That includes principles such as “the polluter pays”, the precautionary principle and the principle that environmental damage should be rectified at source. The Government have indicated that they will come out with a new policy statement on these principles. But policy statements do not have the force of law, as is currently the case.
Then there is the status of this law when it has been transferred over. I much commend the position taken by the Constitution Committee that the retained law should be regarded as primary legislation. This law was originally agreed by a high-level democratic process and must not be able to be changed at the whim of a Minister by secondary legislation at any time in the future.
The Bill also fails to provide common frameworks, as the noble Lord said, to enable England and the devolved Administrations to work together on environmental standards which will underpin future international trade and future internal co-operation. Strangely, the environment does not recognise national boundaries. Most importantly, however, the Bill fails to provide a substitute for the powers to hold government and public bodies to account for failing to meet environmental standards, which the current EU monitoring, reporting and infraction processes provide. Nor does it transfer across access to environmental justice for citizens.
In the 25-year environment plan the Government have undertaken to consult on a new, independent body to hold government to account on environmental performance. Can the Minister assure us that this consultation will take place before the final passage of the Bill and that it will clarify the roles, powers and sanctions that the new body will have so that we can all judge whether it will be sufficiently independent and effective to take the place of the European provisions? Can he also assure us that the new body will be up and running before the demise of the European Court of Justice’s provenance so as to leave no gap into which environmental remedies can fall?
So a lot of amendments to the Bill will be required. We will have hours and hours of happy fun in the woods. However, even once the Bill has passed, more than 800 environmental provisions will have to be amended by statutory instrument to remain operable. The Government tell us that these will be minor tweaks, but we cannot judge whether they are really just tweaks, inadvertent changes or—dare I say it?—deliberate, more substantial changes. Personally, I believe in the cock-up theory of history and therefore that they may be inadvertent, but we could all help to keep the Government honest on these if they were published, open and consulted on before the final passage of the Bill—otherwise we are buying a pig in a poke.
It breaks my heart that Brexit is happening and that therefore we need the Bill. But we do need it and it needs to be much amended if precious environmental law is to come safely across—simply, alas, to maintain standards where they already are. I therefore encourage Pooh, Piglet and perhaps even Eeyore to come back into the woods.
My Lords, we are in the twilight zone of this long debate. I am speaker No. 161, and I have been positioned as the filling in a rich Young-Judge sandwich of the noble Baroness, Lady Young, and the noble and learned Lord, Lord Judge. I will direct my comments to three general points, the first of which is referenda.
I have no doubt that referenda sit very uneasily with our long-established system of parliamentary democracy, which for many years appears to have worked in the least bad way you can expect government to work. I have no desire to see referenda on extremely complex decisions become the norm, and I believe that a referendum on the terms of our exit from the EU—which would give a second bite of the cherry to a minority who did not like the result they got in 2016—would weaken our constitution. I say that as somebody who both voted and campaigned to remain in the EU. My noble friend Lord Hamilton of Epsom, in an enthusiastic speech yesterday which included a confession of possible future civil disobedience, raised some practical and strong objections to the details of when, what and how any referendum would be conducted. My objection is more fundamental, and I can do no better than to refer to the impassioned, tub-thumping words of my noble friend Lord Patten yesterday when he spoke so eloquently against referenda. This was echoed today by my noble friend Lord Hague.
Secondly, coming from the world of business and commerce, I find it perplexing to read demands for the democratically elected Government’s detailed negotiating position to be published. What an absurd notion, and how damaging to the nation’s interests such a demand is. The electorate usually shows itself to be more discerning than we parliamentarians, colourfully described by my noble friend Lord Ridley yesterday as, “popinjays” and “panjandrums”. The electorate will see through any theoretical or intellectualised argument to the contrary, since the truth is so obvious
Poker players—or bridge players if you prefer something more genteel—do not disclose their hands until the bidding is done, and nor should our Government in the Brexit negotiations. Yes, it is reasonable to expect the Government to define the broad parameters of the negotiation, but this notion that we must receive a blow-by-blow account of the detailed talks is for the birds. I think, however, we can expect the Government to comfort us that they know, when entering the room, whether they are about to play bridge or poker.
Finally, I find it interesting that we are now in a world where spokespersons from both sides of the Brexit debate demand this and that from our political leaders in the certain knowledge that their demands are unachievable. I caution all sides, in the national interest, to exercise some responsibility in their public posturing. As the right reverend Prelate the Bishop of Leeds said so eloquently yesterday, politicians should engage in respectful discussions and be less tribal—sentiments also expressed by my noble friends Lord Strathclyde and Lord Hunt of Wirral today.
We have to accept that each member of the EU 27 has its own agenda for the discussions, and we need an understanding of those agendas to be able to negotiate a practicable solution. Take Germany as an example. In 2017 Germany is estimated to have enjoyed a substantial budget surplus of some €28 billion—an enviable position—and in the 11 months to November 2017, a trade surplus of a staggering €225 billion. Meanwhile—this number is difficult to extract from the public documentation—it is believed that Germany has lent over €500 billion to the European Central Bank, and the ECB has lent €590 billion to Spain, Italy and Portugal. Notably, this number does not include Greece. You could argue, therefore, that Germany has a huge interest in discouraging other possibly wavering nations from leaving the EU, and in maintaining the stability of Europe—especially the eurozone—as it is effectively propping up a relatively weak currency with loans to the struggling south, funnelled through the ECB to spread its credit risk. No wonder then that many believe that even the main German industrial lobbies support taking a relatively hard line with the UK, reasoning that the sanctity of the single market is more important than losing some BMW or Mercedes car sales to the UK.
This is absolutely not the time to play partisan politics; this is a time to show statesmanship and work towards an achievable result that works best for the nation, and which complies with the result of a referendum that this House and the other place approved in 2015. However naive it sounds in today’s Alice in Wonderland political environment, what I ask for—and believe the nation should, and does, expect—is that we find a common purpose around which the national interest can coalesce. I very much hope that our debates on the Bill over next few weeks will seek to do that.
My Lords, without this Bill exit day will be an Armageddon of legal chaos. Governments, public authorities and every single citizen will be in a complete mess; he or she will simply not know where they stand. I welcome the Bill. The result, of course, will be that parliamentary sovereignty will be restored. Parliament will no longer be subject to the supremacy of European law. The Bill itself speaks about this, but I do not understand why. It is a concept known in Europe, not a concept known in this country. When we leave Europe, the concept of European supremacy will simply be ridiculous.
This means that all the laws sent to us by Europe for the last 40 years or so will have legal force, not because they come from Europe but because, and only because, our Parliament has in effect re-enacted them for as long as it wishes them to stay in place and made them part of our constitutional arrangements. That, indeed, is parliamentary sovereignty. The summary, in the end, is this: the supremacy of European law will be at an end and the ultimate law-making power will have returned home.
This Bill duly honours the result of the referendum. I shall not spend time arguing the merits or demerits of the decisions that have been made by this country—we have heard quite a lot of them. I just want to draw attention to this: a little scrutiny reveals the flaws in this Bill, and we must rectify them. The Constitution Committee has identified a whole series of problems with it, and I shall not repeat them. I want to make a much broader point arising from the Constitution Committee’s report, but also from any reading of this Bill. Looking at the Bill as a whole, with the excitement of sovereignty returning home, I ask rhetorically: does the Bill as presently drafted, simultaneously serve to reduce sovereignty, not in constitutional theory, but in constitutional practice?
For the last 40 years parliamentary authority over the Executive has steadily diminished. It is no good fooling ourselves: that is what has been happening whichever party has been in power, and even in the time of a coalition. Perhaps this is because, under our obligations under the European Communities Act 1972, we had to accept laws. Perhaps it is because time is shorter than it was. However it has occurred, Parliament has acquiesced and perhaps been blind to the problem. Regulation-making powers have been strewn around Ministers like confetti at a happy wedding. Not a single Bill comes before this House in which there are not regulation-making powers. The last Bill we looked at, the Sanctions and Anti-Money Laundering Bill, was nothing but regulation-making powers. There was nothing in it except for regulations or regulation-making powers.
I take these figures from The Devil is in the Detail, a marvellous book by the Hansard Society. Do we appreciate that every year 12,000 pages—12,000 small-typed pages—of laws are made by regulation? I wonder who reads them all—nobody. That is the result of vesting power in the Executive. So if parliamentary sovereignty is to mean what it says, law-making by Ministers should be reduced. We should look very closely when we decide that we are going to give these law-making powers.
This Bill as drafted, undoubtedly enhances ministerial law-making. In theory, that is all fine—there is parliamentary scrutiny. In the Commons, the Government accepted an amendment saying that there would be a sifting committee, and the Leader of the House suggested that she would have the same arrangement here. That is fine—till when? Do your Lordships realise what the sifting committee’s power actually is? It is the power to require an affirmative rather than a negative resolution procedure.
Again, I am taking my figures from the book that I have recommended, and I do recommend it—the summary is very easy. The whole book is pretty well written but when noble Lords have read the summary, they will not need to go much further. It tells us that since 1950 170,000 statutory instruments have been made. Of those, 17 have been rejected—that is, 0.01%. That has happened in the Commons 11 times, the last occasion being 1979. In this House, it has happened six times. On the last occasion, we were nearly drummed out of existence for having the nerve to take on the Government over one of their regulations, which was to do with the £4.5 billion arising from tax credits. Incidentally, I hope everybody realises that Mr Osborne was using powers given to him by a Labour Government. That is the problem.
My time is nearly up. When we come to look at the Bill, can we please examine whether it gives more powers to the Minister than he or she should ever have and whether we should control the Executive better than we do? If we do not do that now with this Bill, we will never ever recover the opportunity to do so again.
My Lords, I want to follow the line of argument developed by the noble and learned Lord, Lord Judge. In fact, a number of speakers in this debate have called for a meaningful role for Parliament in the Brexit process. Indeed, the noble Lord, Lord Hague, was characteristically eloquent on this subject, and tonight I want to address the role of Parliament in the withdrawal process.
At the moment, Clause 9 gives Parliament one meaningful vote on any deal at the end of the talks. That is fine and I congratulate those who promoted it, but some of us suspect that the context for such a vote will be “vote for the deal or face the cliff edge”. There will not be too many other options around at that time. That will be being said not just by our government negotiators but by EU 27 Governments as well.
My key point in this debate is: what about a say and a vote for Parliament at an earlier stage, specifically on the mandate that the Government should follow in the talks about the future of UK-EU relations? At the moment, we have the Prime Minister’s red lines in the Lancaster House press conference speech. She rules out membership of the single market and the customs union and a continuing role for the ECJ. We had warmer words from her in her Florence speech and we have had a mixture of incompatible objectives and wishful thinking from individual Ministers, but none of that carries the authority of Parliament at this stage.
The EU, on the other hand, is currently developing clear mandates on the transitional arrangements, as we saw earlier this week, and in March it will develop one on the future relationship with the UK. But when do the UK Parliament—especially the other place, to which I certainly cede superiority in this matter—and the devolved Parliaments and Assemblies, which will also need to be engaged, get to debate the UK’s approach and give the government negotiators a clearer mandate than they have at the moment? Sure, we will get to commentate in our own committees and in various debates in this House, but we will not play a central role in the process, and that is not good enough.
As many people have said, the Cabinet is in a muddle over how to take this forward, yet Parliament is exerting no pressure on it to get its act together and come up with coherent and practicable positions for negotiating with the EU. As an old trade union negotiator, I am, like the noble Lord, Lord Lupton, all for giving flexibility to negotiators, certainly once the talks start, but starting the talks without clear, practicable objectives is inviting disaster. We need to know whether we are playing bridge or poker when we go into these talks.
At this crucial stage in our island’s story, to progress these negotiations without a parliamentary mandate is careless and undemocratic. It is the opposite of taking back control. It certainly repeats many of the earlier mistakes to which the noble and learned Lord, Lord Judge, referred in terms of the relationship between Parliament and the Executive.
Therefore, we need to amend the Bill to provide for a second meaningful vote in Parliament—this time on the mandate for the talks about the future relationship. This, if adopted, would force the Government, and others, to take a position before setting off to see Monsieur Barnier. It is time for Parliament to exert some control over the withdrawal process, and in due course there will be an amendment drawing on all corners of the House to this effect. My preference—I will be frank and lay my cards face up on the table—is for a mandate that prioritises jobs, rights and trade, as called for in an excellent briefing from the TUC, which I commend to all noble Lords.
I have always been comfortable with the shared sovereignty concept of the EU. I have never found it restrictive; the EU has given us extra scope, extra reach and extra power. It has not restricted anything at all in just about every single case. However, I accept that if Parliament votes on a mandate, the vote might go the other way. To some extent, that would settle the direction of travel, because that direction is not settled at the moment. I will be looking for support from all sides of the House for an amendment along those lines to be moved in Committee and on Report, making that crucial point and returning power to Parliament—which I think was one of the objectives of the leave argument in the referendum.
My Lords, this Bill started life as an oxymoron—let us be honest. The great repeal Bill repeals some EU law but transposes it back into UK legislation, and what we have heard today has made it clear that it is not that great either. As many have already pointed out, it has numerous technical and constitutional defects. As a former head of the Treasury, I salivate at the prospect of raising tax via statutory instruments, but that is probably best avoided, as the noble and learned Lord, Lord Judge, pointed out.
The Constitution Committee’s points seem broadly sensible and I hope that the Government can accept them. The treatment of Scotland, Wales and Northern Ireland in the Bill leaves me very puzzled. It is indefensible. I assume that we will be coming up with a new version of Clause 11 and that that will be cleared with the devolved authorities; otherwise, we will be completely stuck on that.
The Bill’s origin dates back to then Prime Minister Cameron’s decision to hold a referendum, which, in my opinion and to misquote him, was a disaster, not a mistake. I am a believer in parliamentary democracy, not government by referendum. However, given where we are now, the only question, to which I will return, is whether two wrongs would make a right. Today, I want to make some points in my role as a former Cabinet Secretary and head of the Civil Service, and in other roles as an economist. I declare various economic affiliations as listed in the register of interests.
I admire, but do not envy, my successor, who is trying to implement the Government’s policy on Brexit, whatever that is. Although there has been an inevitable and much-needed increase in the number of civil servants working on Brexit, Civil Service numbers overall continue to fall as efficiency improvements are delivered. But Brexit is inevitably squeezing out almost everything else.
Despite these challenges, morale in the Civil Service, as measured by the annual engagement surveys—and I like evidence—is at an all-time high. So it is particularly disappointing—I was very grateful to hear the support expressed by the noble Baroness, Lady Blackstone—to see a divided Cabinet resorting to attacking the civil servants who simply want to implement whatever policy Cabinet finally decides upon. The progress made to date and the fact that we have successfully moved on to the next stage of talks is witness to the hard work that is going on behind the scenes. Civil servants across a range of departments are delivering detailed analysis. Businesses, trade unions—as the noble Lord, Lord Monks pointed out—and think tanks have provided their input. The bickering and blaming of servants needs to stop. Cabinet needs to formulate a policy for the next crucial stage. The EU 27, and we should learn from them, have been strengthened by having a clear, public negotiating position—we need one as well.
For the next stage, I would say, now is the time for experts. We need Ministers to stay in the post for long enough to master their briefs. Listening to the noble Lords, Lord Hill and Lord Bridges, makes me realise how much expertise has been lost. Cabinet should abide by the principle—that very old principle—of collective responsibility. By all means argue in private, but please present a united front in negotiations.
On the economic aspects, I hope that Ministers and civil servants will study the wealth of analyses that are now being undertaken by a number of groups, such as the Trade Knowledge Exchange, which I am involved in, which are all committed to helping us get the best deal possible. Their analysis highlights that the benefits of a good trade deal with the EU are worth far more than the amounts discussed in the first stage talks and, I would argue, far more than deals with third countries. As Pascal Lamy, the former head of the WTO, has pointed out, the big costs in trade terms come from regulatory divergence. Yet the ability to diverge from EU rules is regarded as a big benefit by some. It is also true that trade deals with third countries will require similar regulations. Such deals will be governed by what I would call the tug of regulatory gravity, meaning that the bigger partners, such as the US, China or India, have the biggest say in determining the rules.
The right reverend Prelate the Bishop of Leeds reminded us that there is more to a good life than just prosperity. It is very interesting that those parts of the country with the greatest inequality in self-reported levels of well-being were the areas where the leave vote was strongest, and we should really analyse why this vote took place. We do not have the time to go into that here, but it is a very important point.
Jobs matter for well-being and the recently leaked document on various scenarios backs up most of the public research that has been available for months. It is not new; it has been around for a long time. It has shown that growth will be significantly lower outside the EU than it would otherwise have been. I know counterfactuals do not make for slick soundbites, but the time for those has gone, as the noble Baroness, Lady Smith, has said. Fortunately, the world is going through a period of strong growth, including in our number one trading partner, the EU, so our headline growth figures will not look bad—unless, of course, you compare them with the rest of the world. Lower growth means lower tax revenue and lower public spending, and that has implications for the NHS.
So, assuming this Bill is amended sensibly, I will hold my nose and join my esteemed predecessors, including the noble Lords, Lord Butler, Lord Armstrong and Lord Wilson, who have spoken in this debate, in supporting it. By the autumn we should know more about the kind of deal that is on offer. The noble Lord, Lord Lisvane, gave us that brilliant analogy last night. Will it be more “The Texas Chain Saw Massacre” or “Reservoir Dogs”? We do not know yet.
For me, the issue of how Northern Ireland is treated will be a determining factor. I have absolutely no idea how you reconcile regulatory alignment and no hard border with leaving the single market and the customs union. Whatever is decided, peace must be preserved. When we have all the details of that proposed deal—in the autumn I hope, but I am not really expecting that—then, and only then, should Parliament consider whether the result of the negotiations is so far away from what was promised that the people should be consulted again. But this time we must give the people a clear choice between the terms on which we should remain and leave so that they know exactly what the terms are in both cases.
To conclude, this is, as the noble and learned Lord, Lord Judge, pointed out, an essential Bill—there is chaos without it. But this House can improve it substantially. That will take time, which is running out for the Government, the country and me, so I will sit down.
My Lords, it is an honour to follow the noble Lord. I would like to dedicate my speech, if this is within the conventions of your Lordships’ House, to another Member of the House—the right reverend Prelate the Bishop of Leeds—for exactly the same reason as the noble Lord, Lord O’Donnell, mentioned him. The right reverend Prelate reminded us that there is more to life than trade deals and that human beings possess the power of imagination, and can conjure up in their minds a vision of a better world and a better life.
So far in this debate, we have certainly been presented with many nightmare scenarios. So now, as we approach the end, perhaps I may paint your Lordships a picture, if you will allow me, of the dream scenario: a happy ending to the story.
So I bring your Lordships joyous news. It is a photo opportunity to be shared in social media and across all TVs, all platforms, all devices all over the world. It immediately goes viral and is downloaded 1.2 billion times in 43 seconds—a global media sensation. There are three people in the picture: German Chancellor Merkel, French President Macron and, standing between them and slightly in front of them, British Prime Minister Theresa May. The backdrop is the Eiffel Tower in Paris. Chancellor Merkel speaks first. She says: “Today, every citizen of Europe gives thanks to British Prime Minister May for this historic agreement, signed by us, which guarantees the peace, prosperity and security of all the people of Europe”. A spectacular fireworks display then illuminates the Eiffel Tower and the whole of the sky above Paris is dazzling red, white and blue.
The Prime Minister comes home in a special plane of the Queen’s Flight. She is driven to Buckingham Palace to inform Her Majesty the Queen of her progress. Returning to Downing Street through crowd-lined streets under a pale May sun, the Prime Minister speaks—a lone figure, standing at the now familiar lectern outside the door of No. 10. She announces: “We are no longer a member of the European Union. We are now a partner of the European Union”. The crowd roars its approval as she reports: “All our red lines have been achieved. We are no longer a member of the single market. We are now a member of the single platform. We are no longer a member of the customs union. We are now a member of the customs group. We are no longer under the jurisdiction of the European Court of Justice. We will not ‘take account of or have regard to’ the decisions of the ECJ. We will only have ‘due regard’ to its rulings, and we will no longer submit to free movement of persons. We will now only accept free movement of workers”.
Turning from the world’s cameras to speak directly to the British people, she says: “I have carried out the task you gave me. I have delivered the will of the British people. I now await your further instructions”. As she turns to enter No. 10, some reporters shout out: “Prime Minister, Prime Minister! Nothing has changed!”. But their voices are drowned out by the spontaneous burst into singing of the citizens outside the gates of No. 10 as the sound reverberates along Whitehall: “For she’s a jolly good fellow and so say all of us!”.
In the years that followed, the Prime Minister provided the British people, free at last, with an inspiring vision and sense of purpose. She saw that the most effective political statement of our time was, “I have a dream”. She had a dream too, and she made it come true: an “end state” where Britain takes its rightful place as the national leader of Europe. How did she do it? Every day she noted the statue of General Slim opposite Downing Street and remembered his lesson about the power of words to change the world. As he said:
“You cannot win a war unless your troops believe they are fighting for a noble object”.
She carefully studied how Germany had risen from ashes to ascendancy, dust to dominance, by changing just one word: “democracy”. As so many noble Lords know much better than I, in the original European Coal and Steel Community made up of six countries, democracy meant one country, one vote. German diplomats brilliantly changed it to one citizen, one vote, which is much more democratic. The moves that followed—reunification of the biggest population in Europe; the treaty of Nice, so that Germany outvoted Britain for the first time; and the treaty of Lisbon, so that the majority required to change EU law was reduced—were three simple steps to effective control of Europe. The Prime Minister thought, “They did it. Why can’t we?”. She saw the opportunity. Britain would soon have the largest working-age population in Europe, and according to the most recent estimates, faster economic growth than Germany for the next 20 years.
So the Prime Minister called the Foreign Secretary to No. 10 and asked to see the Foreign Office plan for Britain as the leading nation of Europe. She was told, “Britain at the head of Europe? It’s impossible. Pie in the sky. Head in the clouds. We must keep our feet on the ground”. But she thought that that would not do. She resolved to mobilise the English language and send it into battle; we know that. The Prime Minister understood that this would be the work of a generation or even two generations, as it was for Germany, but she recognised that the movie we are in—further to the choices made by the noble Lord, Lord Lisvane—is not “The Great Escape”. The film needs a better title—“The Promised Land”—and a new script written by a fresh team of screenwriters. The Prime Minister held fast to her dream because she knew that a map of the world which does not include Utopia is not worth looking at.
My Lords, on this very day,
A recent Thomson Reuters report identified 52,741 pieces of legislation that have been passed in Parliament since 1990, many of which came from Europe. Transferring European law into British law is the quickest way to ensure continuity, and of course that is the purpose of the Bill. So I see the rationale for the so-called Henry VIII clauses allowing Ministers to streamline the procedures, but I put it to the Minister that these powers should be limited to technical issues only and that there should be a sunset clause. But in so doing, surely we have to learn from the past. Such a complexity of constitutional laws may not have served Britain well. Let us not forget that, after 40 days and 40 nights on Mount Sinai, in the presence of Almighty God, the prophet Moses finally emerged with only 10 commandments to help humanity. If God had given Moses 52,741 laws, I suspect that he would have needed more than two tablets.
I spent some years as a barrister in what was known as “Rumpole of the Bailey’s chambers”. I stress that I am in favour of this Bill and I want it to pass, but there are some matters that I would ask the Minister to comment on when he winds up. There is concern that the Bill as drafted fails to fully assign a legal status to retained EU law. Will he also address the concern that Ministers are due to determine legal status only on a case-by-case basis, considering the fundamental nature of such a power?
The Bill seeks also not to retain the Charter of Fundamental Rights. Will the Minister address concerns that this may lead to a rather scattered landscape of rights, resulting in less protection for people? I am sure that all of these matters can be resolved, but I ask him to consider them.
Much has been said about Clause 11 on devolution, and I urge the Government to rethink it. Can the Minister also assure your Lordships that the House of Lords will play an equal role in scrutinising any secondary legislation, as I believe was promised by the Leader of the House of Lords in evidence to the Constitution Committee on
This is an exciting time for our nation. No longer will we be shackled by the EU single market or burdened by paying huge sums into the EU budget. Britain will become a truly global trading nation, making trade agreements all around the world. On this very day the Prime Minister is in China with many of our businessmen, hoping to make trade agreements with the enormous Chinese trading bloc.
Much has also been said about the nature of this country post Brexit, and this is where I will refer to the Commonwealth family. My father came to Britain from Jamaica in the 1940s to do perhaps the most noble job known to mankind—to play cricket for Warwickshire. Although he was born and raised in Jamaica, he felt that he was coming home because he was part of the Commonwealth family. Let us remember that that family comprises 52 nations with one-third of the world’s population. It has an immensely rich and enduring history and culture, with English as a common language, as well as great admiration for our sovereign. The timing of the Bill is excellent since Britain is due to host the next Commonwealth Heads of Government Meeting in just a few weeks’ time.
This Bill is not a leap into the dark. When fear knocks at the door, we must answer it with faith. It is illuminating that throughout the Bible there is a clear theme of one empire after another eventually overreaching itself and gradually collapsing. In the Old Testament it was the Egyptian empire, followed by the Assyrian empire, the Babylonian empire and finally the Persian empire. They all collapsed. In the New Testament were the powerful rulers of the Roman empire such as Nero—but they all eventually fell. So the Bible and history demonstrate how national sovereignty always proves more durable than the politics of imposed empire.
For 10 years I was vice-president of the British Board of Film Classification. Currently there is a British film which will probably win several Oscars for the British film industry. It is called “The Darkest Hour” and it is about the Second World War. We are privileged to be part of the most important season in British history since 1945. As we engage with our European counterparts, we must revive the winning spirit of Sir Winston Churchill. In the film, Churchill declares that, “You cannot reason with a tiger when your head is in its mouth”.
My Lords, it is hard to follow the noble Lord, Lord Saatchi, and it is hard to follow Warwickshire cricket. I was going to say that the speech which has made the most impact on me so far in the debate was that of the noble Lord, Lord Bridges, yesterday. He spoke of the need for us to decide what kind of country we want, because only when we know what we want to be will we know what relationship with Europe is right for us. Not for the first time, he called on the Government to be,
“honest with themselves and the public about the choices we face. Then, the Prime Minister and her Cabinet must make those choices … to govern is to choose. As we face the biggest challenge this country has faced since the Second World War, keeping every option open is no longer an option”.—[
I could not agree more. I could not put it better. I am very uneasy about the silence of the sphinx. I am very uneasy when I see free-market wolves in cuddly sheep’s clothing promising undiminished farm support. I am very uneasy about fierce critics of the working time regulations promising that there will be no change to labour rights, employment rights, social rights and equality rights, and that we do not need to worry about giving Ministers the power to make changes to such rights by statutory instrument.
More generally, the Government need to come clean on whether taking back control means a bonfire of controls, and whether we are going to change our socioeconomic model, as in autumn 2015 the Chancellor said we might have to do. We need to know for two reasons. First, the Bill asks us to give them the matches to light the bonfire if they want to. Secondly, our partners across the Channel need to know. They will decide what access we can have to their markets depending on how far we will stick to the model of how their economies—most western European economies—work.
It will not do any longer just to say that we want something deep, special, unique and bespoke: we have to define what it is. It is not enough to say—as we said, far too soon—what we do not want. Mrs Merkel is quite right: we have now to say what we do want. When the 27 say that the British red lines mean that the British can have no more than a “Canadian” deal, we must stop putting our fingers in our ears and chanting “la la la—I can’t hear you”. It is their call: they will say what deal we will get. There are red lines, but it is their call. Getting a Cabinet to agree and stick to a line is always difficult, but that is the job. A sphinx- like silence will not do any more.
Of course we must pass this Bill, for all the reasons mentioned by so many noble Lords. If in the end we leave the EU, EU law has to be instantly repatriated to ensure legal continuity. We must, therefore, pass the Bill, and I am confident that we will improve it. I would like to see improvements in four areas.
The first is the area that the noble Lord, Lord Lisvane, among others, drew attention to: I do not see any need for such a massive transfer of power from legislature to Executive, and on that I very much agree with the warning from the noble and learned Lord, Lord Judge. For me, the lightbulb moment was spotting Clause 9(2), where Ministers take the power to change—by delegated regulation—this Act. So we spend the next three months working day and night to improve the Bill and when it is on the statute book the Minister, with a flick of his pen, can cross out our work. That cannot be right. In the words of the Constitution Committee, it gives Ministers,
“far greater latitude than is constitutionally acceptable”.
Secondly, as a Scotsman I of course listened very carefully to the noble and learned Lords, Lord Hope, Lord Wallace of Tankerness and Lord Mackay, and it seems to me that they are right: there is no need to attack and overturn the central principle of the devolution settlement—and there will be a huge price to be paid if we do. I do not understand the sphinx-like disdain for consultation with the devolved Administrations. It is exactly a year since the Prime Minister last met her devolved Administration colleagues in the JMC, the top-level committee set up for consultation with the devolved Administrations—a whole year. That cannot be right. I very much hope that the Minister will bring forward an agreed amendment to Clause 11 very soon, but we may need to nudge the process a bit and perhaps also make sure that the Belfast principles, as set out in the Northern Ireland Act 1998, cannot be undercut by powers taken in this Bill.
Thirdly, like the noble Lord, Lord Hannay, I have difficulty understanding the link between this Bill and the stand-still transition period that, it seems, we want. The 27 reminded us in the mandate that they agreed on Monday that in the transition period the ECJ’s jurisdiction will rule. The Prime Minister acknowledged that in her Florence speech. Why, therefore, does the Bill strike out the ECJ’s jurisdiction? We will only have to put it back again if we get a transition period.
Lastly, I am uneasy that Ministers may try to duck out of the meaningful vote that we have been promised when the outcome of the negotiations is clear. Suppose that there is no deal. Suppose also that by then we have a different Prime Minister—the sphinx sits on shifting sands. Suppose that we have a Prime Minister who believes that Brussels should whistle for the money. Suppose that the negotiations break down. Will we get the meaningful vote to ensure that Parliament cannot be bypassed? This Bill has to guarantee that in all circumstances the moment of truth will definitely come—and come at a time when we still have the options of extending withdrawal negotiations, taking back the Article 50 notification letter or consulting the country about doing so.
My Lords, I am delighted to follow the noble Lord, as I seem to have done for the past 20 years. I refer to my current interests on the register.
“I believe that we shall walk tall into Europe on 1st January 1973. We shall take our rightful place in the counsels of Europe. We shall compete and we shall contribute”.—[Official Report, Commons, 13/7/72; col. 1984.]
In leaving the European Union, we shall undoubtedly diminish our standing and influence in the world. It was Europe that brought me into politics. I was born of a Danish mother and Scottish father. Denmark was occupied during the Second World War, severely restricting the freedoms and liberty my mother could enjoy while growing up with occupying troops and tanks on the streets of Copenhagen.
I fervently believe that bringing our trading relations closer together across Europe, as our membership of the European Union has facilitated, has made the prospect of future conflicts in Europe much less likely. With the collapse of the Berlin Wall—I was there in November 1989, a day I shall remember all my life—we have seen an influx of countries and peoples from the former Soviet bloc, strengthening our defence against a potential foe. That same year, 1973, when we joined the European Union, I left Harrogate Ladies’ College to embark on my legal studies at Edinburgh University. I had high hopes of following a career in the European Community as it then was, and I did. I undertook a “stage”—an internship—in the Commission. I worked for the Conservatives in the European Parliament. I practised European law and I then became a Member of the European Parliament.
My overwhelming feeling in debating this Bill is one of sadness at the fact that many of the opportunities that I had in my 20s and 30s will not be available to future generations—namely, the right to live, study and work in another EU country.
I will set out why, in my view, the Bill is defective. In transposing into UK law those instruments such as regulations and decisions—instruments other than EU directives—the Bill seeks to introduce a new category of retained direct EU law, whose status seems far from clear, as was put most eloquently by the noble and learned Lord, Lord Judge, and other noble Lords. The provisions of the Bill lack clarity and legal certainty, and if I was a law student today I would find it impossible to understand its provisions. They do not entirely reflect the well-established principles of direct effect and direct applicability, and the relationship between the supremacy of EU law and retained EU law is simply not clear.
The Bill is further flawed by the huge power given to the Executive to pass secondary legislation through so-called Henry VIII clauses. While there is agreement across Parliament that new procedures are needed to ensure proper scrutiny—to hold the Government to account—I query whether new committees are required or this is best dealt with by beefed-up versions of the existing committees on delegated legislation.
If there is one unique contribution I can bring to the debate today, it is this: I argue—and have long argued in the other place and here—that there should be the opportunity to amend the content of those draft statutory instruments which come before both Houses, not just to vote for or against them. This is especially relevant as the Explanatory Memorandum to the Bill states that these laws, once transposed, can then be further revised and amended by Parliament post Brexit. But this would be a new power: a power to amend not just the title but the actual content of each and every statutory instrument. Clauses 2 to 9 are therefore ripe for amendment. I have a word of caution for my noble friends Lord Astor and Lord Ridley, and fervent readers of the Daily Mail: those of us who wish to improve the Bill stand prepared to perform our statutory and parliamentary duty of making it better.
We are faced with inconvenient truths: the UK simply cannot replicate the free trade agreements with the 70-plus countries with which the EU has a formal trade agreement, including Commonwealth countries. Although there are countries such as Vietnam outside these arrangements, in effect the potential market is very small compared to the existing single market of 505 million consumers. It surprises me that the Government took the key tools in their negotiating pack off the table even before negotiations began—namely, our membership of the single market and customs union. Considering the remaining options available, applying to join the European Free Trade Association would seem the next best thing to membership of the EU; and leaving with no deal, on World Trade Organization most-favoured nation terms, the worst. Being in EFTA would minimise the potential economic damage, solve the question of the Irish border and maintain our sovereignty. Were we to be outside the single market and EFTA, a dispute resolution mechanism must be agreed in regard to cross-border issues involving British goods entering the EU post Brexit.
In terms of agriculture and the environment, I believe that the common agricultural policy has made the EU supply chain more sustainable and kept prices stable. Since the referendum and the collapse in the value of the pound, food prices have risen sharply. The higher environmental standards have turned Britain from the dirty man of Europe to the clean and green land that we are.
I am proud that our history, cultures and destinies are shared with our European partners. The question today is what exactly the nature of our deep and special relationship, going forward, will be and whether that will be in the best interests of this place, of our country, of the British people, of British business and, especially, of the younger generation.
I welcome this Second Reading to consider the continuing role of the UK Parliament in the future of Europe although, as the noble Lord, Lord Kerr, said, the devolved parliaments are also a vital element. Having visited and collaborated with friends and scientific colleagues in countries all over the world, it became ever clearer to me that as the EU has welcomed new member countries and led the world in living standards, science and culture, it has become the greatest union of countries and confederations in the world—and that our small country off the north-west of Europe has been incredibly fortunate to be a leading country in that Union, as well as being a member of the looser network of the Commonwealth.
I suppose that all organisations need reviewing from time to time so, in the light of this general philosophy, it was perhaps reasonable for our Parliament, led by Prime Minister Cameron, to announce in 2013 a review of the terms of the UK’s membership of the EU. This led to the in/out referendum in 2016 that resulted in 52% of voters recommending that the UK should leave the EU. But extraordinarily, following the decision in the referendum, our Parliament did not then insist on moving a Bill to establish the legal framework and government policies for leaving the EU. It took the Supreme Court to tell Parliament to take charge of every aspect of leaving the EU and establishing procedures for the UK to work with the EU. Most importantly, these procedures must be relevant in helping people to move and work across Europe.
The woolly and uncertain government statements about wishing to work with the EU in future have not been enough so now, as other noble Lords have explained, we have hundreds of legal measures in this Bill. The Government apparently want to avoid these procedures and just control the leaving process by autocratic Henry VIII measures, as other noble Lords have emphasised. There is now much to be done to establish myriad measures to ensure that Brexit operates smoothly and openly for the thousands of organisations and millions of people who will be affected. But it has become progressively clear that the terms and conditions for the UK to function in relation to the EU will be quite onerous.
As a scientist, I have had many conversations during the past year with researchers, industry and government agencies. We have already seen the departure of important EU science centres that are in the UK and the movement of leading scientists away from the UK. Many European projects will certainly go ahead with significant UK participation, including Euratom, which will be debated in the House of Lords next month. But the UK may no longer take the leading position and UK industry may lose contracts in these new arrangements.
Other centres which the UK takes a lead on include the European Space Agency and the European Centre for Medium-range Weather Forecasts—a major centre here at Reading which, if I may say so, leads to such extraordinarily improved weather forecasts that in the United States they now talk about the European weather. There is currently also funding from the European Commission for these organisations. The tricky and important question, which is not well understood, is whether the UK will make special financial contributions in place of the funding that comes from the European Commission. If not, we will find that many of the guiding strategies and actions of these European agencies in which we are involved will no longer have a UK lead. Norway and Switzerland see this at present; they participate but do not have the leadership role.
The facilities in the UK may also not continue, which would greatly affect UK science, technology and universities. Perhaps even more important is how high-tech manufacturing industry will grow when it no longer receives development funding from the European Commission. These companies are well distributed across the UK, more so perhaps than financial organisations, and many of them work with UK universities. Some of them are already discussing moving some of their operations on to the continent. This is extremely serious for many important industrial communities in the UK. The companies will do this to participate in the most exciting future projects with EU funding.
As we look forward to the next decade, Parliament and the young voters who will then become the majority will realise that there will be progressive disadvantages in the UK’s quasi-independence from the EU. Indeed, as my noble friend Lord Mandelson put it, plans may emerge eventually for a second opportunity for UK voters to express their opinions about the possibility of the UK rejoining the EU politically, which might be an element in the interesting play that we heard of from the noble Lord, Lord Saatchi.
My Lords, it is a pleasure to follow so many excellent speeches on this historic Bill, but it is a Bill that I nevertheless wholeheartedly wish was not before us. But it is, and it is our duty to play our part in ensuring that withdrawal from the EU is as orderly as possible.
I agree with most noble Lords that the Bill is flawed. I have reservations about several aspects, including on the scope of ministerial power and the appropriateness of empowering the Executive to such a degree, particularly in the light of devolution. Moreover, I share some concerns about the level of parliamentary scrutiny needed, and at what level. Speaking as chair of this House’s EU Sub- Committee on Financial Affairs, I will seek clarification from the Government as to how they envisage different levels of EU law and regulatory guidance being implemented in the UK. In this area, detailed parliamentary scrutiny may or may not be appropriate, depending on the level of decision we seek to transpose in our quest for regulatory alignment—something that we should surely seek to do where it is appropriate.
However, it is the amendment proposed by my noble friend Lord Adonis that I wish to address. I think of him as my noble friend because some 25 years ago, I delivered leaflets on his behalf when he was a candidate for the Liberal Democrats, so we go back a long time. I have enormous respect for him as a historian, a senior member of this House and a thought leader on many of the thorniest issues that our country faces. I admire the passion with which he has engaged his campaign for a third referendum, but I wonder to what extent he has reflected on developments on the other side of the English Channel.
For the EU, while Brexit may have been a distraction, it is continuing a business-as-usual model, which is why we have seen such unity. Its priority is rightly to secure the financial stability of the eurozone, and work is continuing apace in that regard. The completion of the eurozone project, the banking union and the capital markets union has significant implications for the UK’s financial services sector. Moreover, ambitions for an EU Finance Minister and a eurozone monetary fund, and Mr Macron’s vision for a separate eurozone parliamentary caucus, present different challenges for our sovereignty and clout in the EU were we to remain.
The EU budget is also undergoing change. The High Level Group on Own Resources, led by Mr Mario Monti, to whom my committee spoke during his deliberations, has now reported. Among its recommendations are new ways to raise direct EU resources, such as a:
“Reformed VAT-own resource … corporate income tax-based own resource, financial transaction tax or other financial activities’ tax”.
It suggested measures relating to the energy union, and to environment, climate and transport policies, including a CO2 levy, proceeds from the European emission trade system, and an electricity tax, a motor fuel levy and other measures. I set this scene just to remind ourselves that the EU we think we might stay in will not be the EU we were in prior to
If I correctly understand the amendment of the noble Lord, Lord Adonis, he seeks a referendum on the terms of the withdrawal agreement. I have two principal thoughts regarding that, as other noble Lords have also supported the view that we need a referendum on the withdrawal agreement. The first is that, if the withdrawal agreement is negotiated by October or November this year—as we have been told by Mr David Davis—the referendum presumably would be after that option is agreed or rejected by both Houses of Parliament, or rejected or agreed by the Commons, which has supremacy. In effect, therefore, the decision to hold a referendum will be legislated for in late 2018 or early 2019, with a referendum impossible till late spring 2019. The Electoral Commission requires six months from a decision till polling day. On that time line, the proposed referendum will be held after we have legally left, or are in transition under a different status, and we would have to reapply to join the EU.
If so, even if the noble Lord, Lord Adonis, then secures a yes vote—and I am pleased to see him back in his place now—we will almost certainly re-enter on different terms than those that pertained before
While this is a possibility, we would only prolong uncertainty, and the change in Europe that I have described in 2019 would surely mean that there would be no final decision on the UK’s status for a further two, three or four years. All this while, businesses will have made decisions to relocate, investment will have fallen further and legal uncertainty will have been prolonged even further. The result would be a prolonged period of drip-drip decisions being made by businesses and institutions, which could only achieve a very diminished result for the UK, whether it were in or out. On that basis, I have come to the conclusion that we have to do the best that we can with withdrawal. I will expend my energy in making it a success to whatever extent I can, starting with this Bill.
My Lords, many have spoken in the context of the tripartite relationship between the Executive, Parliament and the judiciary, of the balance to be struck in this Bill between Parliament and the Executive, and, of course, of the flawed nature of this Bill. I wish to speak solely in relation to the position of the judiciary as affected by this Bill and of maintaining its independence. Noble Lords may at once think that it is quite unnecessary for me to speak about the independence of the judiciary in this context, but it has become clear, not only from what has happened in this country but also from what has happened elsewhere, that the independence of the judiciary depends to a material extent on the legislature and the Executive doing what they can to keep the judges out of political decisions and the judges, of course, doing what they can to keep themselves out of such decisions.
The present draft of Clause 6 requires the judges within the United Kingdom to make decisions that could well be, or certainly be seen to be, political in nature. It is essential that Clause 6 be amended to that effect. This is not the time to develop the arguments, for in any event, they are set out in the excellent—or should I say brilliant? I echo the words of the noble and learned Lord, Lord Goldsmith—report of the Constitution Committee. There is a solution suggested; it needs discussion, and I hope that by the time the Bill comes back to this House, there is a properly thought-through amendment to that clause.
Although it is Clause 6 that directly affects the position of the judiciary in our constitution, it is important also to appreciate the potential effects on the judiciary and its independence of the present clause on devolution—Clause 11—and of Clauses 7 to 9. Those clauses have been referred to by my noble and learned friend Lord Hope as the Cromwellian clauses. I prefer the title Henry VIII. That is not merely because of loyalty to my predecessor, my noble and learned friend Lord Judge, who has done so much under that name to describe the real problems in the extensive use of those clauses and the dilution of parliamentary sovereignty that has resulted, but also because it was Henry VIII who abolished the separate laws of Wales.
It is clear from legal developments in the past decades that recourse to the courts will be used in any attempt to seek resolution of issues that had not been subject to decision by Parliament. That is a good enough reason in itself for decisions to be taken here. There is, as is well known, a ready route to challenge legislative powers exercised by Ministers, but probably not so well appreciated, to review issues in the devolution legislation which are not contained in well-thought-through—I underline those words—and clear provisions. The Welsh devolution cases are a pointer to the problems that can occur.
I have sympathy for the Government and their highly professional legal service when they have to bring about changes to a vast volume of legislation faced with the pressure of time and the uncertainty caused by the absence of agreement with the European Union. In those circumstances, I very much hope that this House and the Government will be prepared to explore alternatives in the legislative process, which have been mentioned by many noble Lords, and the use of expert bodies, such as the Law Commission, to assist by their advice in the process of scrutiny, which is difficult, and avoid unintended consequences.
It is the position of the judiciary that I wish to emphasise. The noble Lord, Lord Kakkar, forcefully pointed out that these issues are a matter of real concern to the judiciary as they affect it. So far, the judiciary has been one of the institutions that has remained largely unaffected by the issues relating to Brexit. However, the events of November 2016 arising out of the first decision in the Article 50 case, in which I participated, demonstrated the importance of the role of the judiciary in our constitution and social order, the relative fragility of its independence and the necessity of Parliament doing, as it did then, all it can to safeguard the independence and position of the judiciary.
There is a further factor which until recently may have been overlooked: the significant contribution our legal system makes to our economic prosperity. We should not ignore the fact that the events of November 2016 were publicised worldwide and commented on. I therefore hope that Parliament will do what it can so that the judiciary’s independence and reputation are not put in issue again.
My Lords, I remember the enthusiasm with which I voted for the 1972 Act and how I campaigned vigorously in the 1976 referendum on the Common Market. In the succeeding 40 years I moved the other way and I voted leave. I remember the Third Reading of the 1972 Bill. The debate was mainly about Commonwealth trade, not the great issues of Europe and all the rest of it. It was about Australian lamb and New Zealand butter. There were two Back-Benchers in that debate who forecast that if we were to join the Common Market there would be a substantial and irreversible transfer of sovereignty and power. They were Michael Foot and Enoch Powell. Over the following 30 years, their forecasts were correct: there was a substantial transfer of sovereignty.
Later in my political career I was involved in one such case. I was Home Secretary during the Maastricht negotiations and I was very keen to ensure that the responsibility of the Home Office for immigration, prisons and the criminal justice system should remain under British control. I had assurances from Douglas Hurd and John Major, given in great good faith, that that would happen. They had agreed with Europe that those issues should be put into a separate pillar. There were going to be three pillars. One would cover all the issues of the Home Office and they would be reserved to nation states. The night before the treaty was signed, I was rung up again and that pledge was reconfirmed. In all fairness, the European authority did set up a separate pillar, but it disappeared within 15 years. One should not be surprised at that because the very powerful institutions that the European Community had established, particularly the Commission, were not really interested in dispersing power from the centre. They believed in centripetal policies drawing powers into the centre. They were not very concerned about the periphery. Analysis of the British referendum shows that the periphery of the forgotten, the overlooked and the not-asked voted against the centralising powers of Europe.
When, as Home Secretary, I met the other Ministers of Justice, we were supposed to form a committee to be a check on the Commission because the Commission was always there. The trouble with the other Ministers was that they kept disappearing. Some were promoted, some were sacked and some were arrested. They were not about and they were not an effective control. They would always chide me on not being a good European. They were the last lot to do that because the Italian Minister went to jail for a huge financial fraud in Naples, the Irish Minister of Justice was sacked for fiddling his election expenses and the Spanish Minister for Justice won the booby prize as he went to jail for murder.
I voted leave for political reasons. I found that our institutions, such as the House of Commons, the courts and the judicial system, were much closer to the British electorate than their European counterparts. When qualified majority voting was introduced, our position at the table in negotiation was reduced very significantly. We lost far more votes than we won, so our position was diminished.
The decision to leave has been taken and I think it will not be changed. Jeremy Corbyn will not support a second referendum, and he is wise not to do that. I would not. I believe it is quite possible that in a second referendum the leave vote would go up, not down, because the way we have been treated by Europe over the past 18 months has been a pretty humiliating experience. Mr Barnier acts rather like a headmaster with a reluctant pupil. Parliamentary democracy should now prevail over plebiscitary democracy. Those who still want to be in the European Union, or to rejoin it if we leave, would be joining a very different body because already the centralising power has increased. Macron, Schulz and the former Italian Prime Minister want one fiscal policy and one Fiscal Minister, and if a Fiscal Minister is appointed one day, our Chancellor of the Exchequer would have to bow to him.
Before I sit down, I shall say something about the political situation and the position of the Prime Minister. I cannot recall any Prime Minister being subject to such vicious attacks, scornful dismissals, offensive vituperation and personally wounding comments on an almost daily basis. She is held in contempt by many people. She is not alone in that. Our last three Prime Ministers—Blair, Brown and Cameron—are also held in contempt, some of them in utter contempt. It seems to go with the job. The Prime Minister has been written off a hundred times yet could she form a Government? Yes. Could she get a Queen’s Speech? Yes. Could she get Article 50 through? Yes. Could she survive the Tory party conference? Yes. Could she restart the stalled negotiations before Christmas? Yes. These are not inconsiderable achievements. They are quite considerable. Faced with this avalanche of disdain, many people would have resigned, and she had an easy exit through her illness, but she has stayed on the bridge, I think from a sense of duty—that may be something to do with being a vicar’s daughter—to ensure that the electoral decision in the referendum, the largest democratic engagement ever in our history, is implemented.
She is the only Tory leader capable of carrying through the Government over the next year. The Conservatives are split, and the Labour Party is split. The Liberal Democrats are not split, yet gained no electoral advantage at all. Perhaps they have missed something. The Prime Minister has set herself one very simple target, namely that Britain will leave the European Union on
“too fond of the right to pursue the expedient”.
It is not often in our history that our two Houses have to make a momentous decision, and that decision should be a parliamentary one, not a referendum one. It will affect which path exactly is to be taken. We have been doing this as an institution for more than 700 years. We have to decide which path to take. We have great sense of history in this House, and I think we recognise that the European Union is a form of empire. In the great roll call of history, it is the empires that collapse and disappear, and it is the nation states that survive.
My Lords, when the Leader of the House opened this debate, she implied that this was a narrow and technical Bill and made it sound like she thought the House was in danger of overestimating the importance of the Bill. However, as we have the largest number of speakers in a Second Reading debate in our history—169 speakers so far and 20 more to come—I suggest to the noble Baroness that we in this House believe this is one of the most important Bills the House will consider for some time.
Almost every speaker I have listened to has been united in agreeing that this Bill is badly put together and will need substantial amendment. Despite the plaudits of the noble Lord, Lord Baker, for the Prime Minister, I believe the Prime Minister and the Cabinet should hold their heads in shame for delivering up a Bill in such bad shape and for trying to intimidate this House and the other place out of amending it. It is pathetic to do so.
I am not without sympathy for the Government’s Front Bench in this House. Those on it will have to put forward arguments in Committee that almost no one, including them, believes credible. They will be asked to get powers that no one in their right minds would give to individuals and will be asked to attack anyone who wants answers on what the Government intend to do post Brexit as potential saboteurs of the Bill.
The Government have continually tried to bypass Parliament and parliamentary scrutiny in this process. We have a role, alongside the House of Commons, to ensure they do not do that. We see with the Taxation (Cross-border Trade) Bill their attempt to insert any discussion of the customs union into that Bill. Here is the sneaky bit: they are then going to try to designate it a finance Bill, to avoid the scrutiny of this House. Can the Minister reassure us, at the end of this debate, that no such ploy will be used?
A flawed process and a flawed negotiation were inevitably going to lead to a flawed Bill. We have a duty to amend it, and to deal with some of the issues raised by the Select Committee on the Constitution and highlighted by my noble friend Lady Taylor of Bolton, the noble Lord, Lord Beith, and the noble and learned Lord, Lord Mackay of Clashfern, to name a few: the relationship between Parliament and government, including the broad range of dangerous delegated powers the Bill would like to take; Scotland, Northern Ireland and Wales; the customs union and the single market; and the issues of disability as highlighted by the noble Baroness, Lady Campbell of Surbiton. A host of other issues have also been raised by noble Lords.
We have a duty to ensure that the House of Commons can revisit some of these issues, which it may not have had time or information to fully consider in its deliberations. We have always challenged the wisdom that once a decision is taken by the democratically elected House of Commons, it is somehow sacrosanct and cannot be changed or challenged. We are the place that says, “We know you took a decision, and we understand the democratic legitimacy of taking it, but we believe you should reflect on it and think again”. Some of that wisdom may be needed by the House of Commons when it comes to the referendum. It should be confident that a referendum is not sacred and sacrosanct but can be changed, and that people can be asked to think again. The public are not stupid: they understand that events change and that it may be necessary to consult them again if, and only if, the circumstances warrant it.
The question is: who decides what circumstances warrant it? For me, that is a matter for the House of Commons and not for your Lordships’ House. What we have to ensure is that this Bill does not block the House of Commons from exercising its judgment on whether that is necessary or not. We have to build flexibility into the Bill for the House of Commons, to allow it to do its job.
I end with a quote, from
“If a democracy cannot change its mind, it ceases to be a democracy”.
The author and speaker of those words was David Davis, Secretary of State for Exiting the European Union. I hope he still believes them to be true, but then again I respect his right to change his mind.
My Lords, it is a pleasure to follow the noble Lord. As he said, more or less everyone agrees that the Bill in its present state requires substantial improvement. The objective must be maximum clarity, to take a phrase from the Constitution Committee’s very powerful report, and minimum legal uncertainty. I think that is the right phrase, as legal certainty is just not achievable here. UK judges will be grappling with issues thrown up by this Bill and related legislation for many years. Your Lordships’ duty, it seems to me, is to make their job manageable. Personal views about the merits or demerits of Brexit seem to be largely irrelevant to the performance of that duty.
It is a bit late in the day for legal stuff, so I apologise, but I want to say something about the Charter of Fundamental Rights, which I think is likely to take up a bit of time as the Bill goes through the House. On this point, the Government are probably right to exclude the charter from the body of EU law which is to pass into post-Brexit UK law. I agree with what has been said about that by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Deech, but will add a few observations of my own.
The Government seek to justify the exclusion of the charter on the ground that it adds nothing to existing rights, and therefore its exclusion is of no consequence. This is most unpersuasive, as the noble and learned Lord, Lord Goldsmith, has said, because it invites the response, “Why bother to exclude it then?”. It is also incorrect as a matter of law. The retention of the charter as part of UK law would, in fact, make some difference. I recognise that it would provide litigants with a few additional arguments, but it would also lead to considerable legal uncertainty. In particular, it would lead to unnecessary complications regarding its interaction with the Convention for the Protection of Human Rights and Fundamental Freedoms, which, as the House knows, is a very similar foundational document.
The convention was drafted in 1949. As is well known, a large part of it was brought into domestic law by the Human Rights Act 1998. Some parts were left out, advisedly. That Act was very carefully drafted, under no pressure of time—unlike this Bill—and struck a balance between the protection of human rights and the constitutional principle of the sovereignty of Parliament. It achieved that by means of the Section 3 obligation to construe legislation in a way that is compatible with human rights, and by means of the Section 4 power to make a declaration that primary legislation is incompatible with a convention right. It does not give the court a power to strike down legislation on the basis of such incompatibility. Almost every practising lawyer and judge would agree that the Human Rights Act and the convention behind it have worked very well. The scope of the Section 3 presumption has been defined in the case law, and Governments have respected declarations of incompatibility.
The charter was drawn up in 2001, but had no legal force until the Lisbon treaty of 2009, which provided that it,
“shall have the same legal value as the Treaties”.
The UK and Poland negotiated what they thought was an opt-out—at least that is what the politicians said—but in December 2011, the CJEU said that in fact it was a document whose purpose was to remind the British and the Poles that they had opted in. At this point, it began to dawn on UK litigants and their lawyers that the charter could be invoked. It is a pleasing irony that one of the first litigants who took the road to Luxembourg was David Davis, who was then on the Back Benches. The point of reciting this history is that throughout the period from 1998 to around summer 2016, so far as I can tell, almost no one said, “Look, hang on—the convention isn’t working. The Human Rights Act isn’t working. We need more. We need the charter”. No one was saying that. What has changed? I am not sure.
The charter differs from the convention in two important general respects. First, its scope is limited by Article 51 to the actions of member states,
“when they are implementing Union law”.
The precise scope and meaning of that phrase is debatable. In any event, no such limitation applies to convention rights, so the scope of the convention is broader than that of the charter. On the other hand, the powers of the domestic court pursuant to the charter go well beyond any power conferred by the Human Rights Act 1998 in relation to the convention. If legislation is incompatible with charter rights, the court must disapply it. If legislation is incompatible with convention rights—which will often be identical—the court cannot disapply it but may grant a declaration of incompatibility.
These distinctions can have odd results. In the Benkharbouche case decided a few months ago by the Supreme Court, employees at the Sudanese and Libyan embassies made various claims which were, on the face of things, barred by the State Immunity Act. The Supreme Court held that the Act was incompatible with both Article 6 of the convention and Article 47 of the charter—which resembles the former but is not quite the same. Some of the claims were EU claims within the charter, some were not, but they were all claims about working conditions and pay. The Supreme Court found that the EU claims within the charter could proceed since the Act had to be disapplied, but the latter could not. It was a strange and, noble Lords may think, unprincipled outcome.
Is there harmonious co-operation between the ECHR in Strasbourg and the CJEU in Luxembourg? One might have that there would be, given that Article 6(3) of the Lisbon treaty provides that the EU should itself accede to the convention—and if there were such harmonious co-operation, the potential for conflict and legal uncertainty would be much reduced. But there is not. In December 2014, I think to general surprise, the CJEU issued an opinion which explained why accession to the convention by the EU was not permissible. It is an interesting document that can be summarised, not unfairly, in one sentence: “The continent is not big enough for two supreme courts”—delivered in the manner of the film that the noble Lord, Lord Lisvane, took his maiden aunts to.
The problematic nature of the relationship between the charter and the convention—and between Luxembourg and Strasbourg—is illustrated by the proceedings I mentioned brought by Mr Davis in relation to data retention legislation. Mr Davis relied on Article 8 of the charter and the Digital Rights Ireland case in the CJEU. In that case, the Divisional Court and the Court of Appeal expressed perplexity and concern that the CJEU had not dealt with a competing and diverging sequence of cases in the Strasbourg court. So the Court of Appeal made a reference to the CJEU and said, “Help us, please—tell us what you mean. Do you mean to expand the charter beyond the convention?”. The CJEU’s response, which came about a year ago, was imperious. It said, in what is again not an entirely unfair paraphrase: “The convention is not an EU text. The charter can reach parts which other conventions cannot, so the UK court’s request for clarification is inadmissible. We are telling you nothing more”.
Allowing human rights law to flow from two separate and, frankly, warring sources is a recipe for legal chaos. The convention works well, and the common law’s protection of human rights is alive and kicking, as the Supreme Court’s judgment in the UNISON case showed. A proliferation of foundational texts is unnecessary and damaging. We do not have time to waste in Committee, and for my part, I think the charter can safely be left in Luxembourg.
My Lords, I respect and support the principle of the Bill as a key piece of legislation which will repeal the European Communities Act 1972 but, at the same time, copy EU laws on to the UK statute book to ensure a smooth transition. At this stage, I am not going to rehearse the problems that many other noble Lords have identified with the Henry VIII powers, which are equivalent to the Statute of Proclamations of 1539, contained in Clauses 7 to 9 and Clause 17. Nor am I going to go into detail about my concerns with Clause 11 and the effect of the Bill on the devolved Administrations. I will only point out—as many other noble Lords have done—the criticism in the cross-party Constitution Committee’s recent report on these clauses, as well as the Hansard Society’s concerns.
I will instead focus on the Bill’s proposed use of legislation via statutory instruments, as has already been analysed by the noble and learned Lord, Lord Judge. As many noble Lords have stated, between 800 and 1,200 separate items will be made in this way, according to MPs in the other place. I welcome the sifting committee that has been proposed by the other place, but it needs to go further. At the moment, the Bill’s proposed way for parliamentary discussion of these items will be the automatic negative procedure. In this House, such items are put on the Order Paper and there are 40 days to pray against them—if this happens, they are then discussed on the Floor of the House. Of course, if noble Lords do not read the House’s business papers in detail every day, they will be blissfully unaware that secondary legislation is sailing through by default—especially on an Order Paper such as today’s, on which noble Lords may not have got as far as page 18. No negative procedure statutory instruments have been turned down in the other place for 38 years, and only 17 have been turned down since 1950 according to the noble and learned Lord, Lord Judge.
If, on the other hand, the proposed statutory instruments are to be discussed by way of an affirmative procedure, they will automatically be taken on the Floor of the House. This is much more satisfactory. To support my argument, I pray in aid the recent report of our Delegated Powers and Regulatory Reform Committee. Summary point 5 states:
“In the absence of a convincing explanation to the contrary, the affirmative procedure should apply to Henry VIII powers under clauses 7 to 9 and 17 that allow Acts of Parliament to be amended or repealed”.
In summary point 6, the report continues:
“Ministers should not have an unfettered choice to apply the negative or the affirmative procedure for statutory instruments under those clauses”.
As an alternative, the committee proposed a sifting mechanism and that all instruments should be laid in draft before Parliament, and that either the affirmative or negative procedure should be proposed. It recommends that where the Minister proposes an affirmative procedure it should apply, but suggests a different process where the Minister proposes a negative procedure. It states:
“a parliamentary committee has 10 sitting days in which to recommend the affirmative procedure instead. If no such recommendation is made, the negative procedure applies”.
Finally, the committee believes:
“Where the committee recommends the affirmative procedure, it applies unless the relevant House rejects the committee’s recommendation within a further period of five sitting days”.
Continuing in the same area, I highlight two more changes recommended by our Delegated Powers Committee. Summary point 3 says:
“Regulations under clause 14 stipulating exit day(s) should be subject to the affirmative procedure”.
At the moment, exit days means such days as a Minister of the Crown shall appoint. This would be solely in the power of the Minister. Thus anyone passing this Bill must be prepared to be a spectator to what the transitional measures will be and how they will operate. This is not satisfactory. As an aside, my personal preference would be to stay in the single market and customs union at least for the transitional period.
The committee also criticises Schedule 4 with regard to taxation. The report says:
“All regulations made under Schedule 4 which introduce or increase fees should be subject to the affirmative procedure”.
I do not have the time to go into the Delegated Powers Committee’s concerns on sub-delegation powers leading to tertiary legislation, as set out in the UCL and Bingham Centre briefing on the Bill.
Like others, I ask the Minister whether he will put down amendments to satisfy the concerns of our constitution and delegated powers committees. I feel that these are really necessary to make this a better Bill. Could he also answer my and many other noble Lords’ concerns on the devolved Administrations issue?
My Lords, it is a pleasure to follow my noble friend. I am consoled in the thought that I am not alone in living a life of blissful ignorance. Although it may seem like a century ago, I refer back to the beginning of this debate and thank and congratulate my noble friend the Leader of the House for and on her clear, authoritative and altogether excellent speech. Again, it is a distant memory, but I thought that the speech of the noble Baroness the Leader of the Opposition had some very interesting and constructive ideas as to how the Bill could be improved, and the House is indebted to her for the tone and content of her opening speech.
Having listened to many hours of debate and read Hansard extensively, I am in no doubt that I am in a minority in your Lordships’ House in believing that we should leave the European Union, and even more in a minority in thinking that no deal is better than a bad deal. In fact, I find myself saddened, not that some speakers disagree with me, but that they appear to think that a bad deal is acceptable. I do not see it that way.
Speakers have fallen into distinct groups, and I belong to the smallest. The second group is represented by the majority of the party opposite, and others, who accept that a Bill is needed and whose opposition will have regard to the constitution and conventions of your Lordships’ House. If I am right about this, we have a lot to be grateful for. Then there are the Liberal Democrats, whose was the only party at the last election that wanted by one means or another to reverse the referendum—and look what happened to their vote. They are quite unabashed, rather admirably so, I suppose, by their numbers being so grossly disproportionate to their representation in the country. They lecture the rest of us on the merits of democracy and then threaten to defy the will of the people, manifesto commitments and votes in the other place. I sometimes wonder whether they place less value on your Lordships’ House than many of the rest of us.
Finally, there is the group that appears to be gathering under the flag of the noble Lord, Lord Adonis, which quite simply wants to ignore the referendum result, as I see it, and sabotage the Brexit process. I have a copy of the noble Lord’s resignation letter here. It is a very long-winded, petulant and self-serving document. I keep a copy on my desktop so that I can show it to my grandchildren as a masterclass as to how not to resign and keep some vestige of dignity. He characterises those who voted for Brexit as “populist” and undergoing a,
“nationalist spasm worthy of Donald Trump”.
So he joins fellow aspiring wreckers who insult us leavers as being stupid, ignorant, bigoted, racist or simply, as the mealy mouthed Mr Tony Blair would have it, having “imperfect knowledge”. The noble Lord describes the Bill rather mysteriously as the,
“worst legislation in my lifetime”, and promises to oppose it relentlessly, and so he begins to do today—or did yesterday.
Perhaps he will be joined by the noble Lord, Lord Kerr, who last week foretold gleefully that Britain could be made to come to heel. Apparently, he enjoyed the prospect of our country being humiliated so much that he actually said it twice. His tone today was, happily, rather more moderate. Having spoken to other retired mandarins, and I know a few, I am left wondering whether it is legacy that these people worry about. If so, this is a dangerous trend. Surely all of us who have seen policies to which we have devoted time and effort be changed have to live with that without throwing the toys out of the bath.
As has been pointed out, there is something surreal about remainers from all parts of the House affecting to be concerned about parliamentary scrutiny, when you consider that membership of the EU has, over the last 40 years, eroded to vanishing point such scrutiny. That has been raised by others. Since they want to enshrine in perpetuity this grotesque state of affairs, their virtue-signalling pretence at outrage rings pretty hollow.
Time does not allow me to talk of trade beyond saying I have worked in the SME sector for most of my working life, and my personal interests appear in the register. Brexit will indeed mean change, but who is afraid of that? It has been a feature of my life every day for the last 40 years or so. Of course, fat corporatists and their CBI mouthpiece tell you otherwise, because they want to go on buying favours from Brussels so as to disadvantage their smaller competitors.
What has attracted rather little attention is the fact that, as the noble Lord, Lord Butler, said yesterday, the EU institutions appear to have no appetite for change. This is what seems to embed our position. They continue on the fateful road towards a federal European state; they want to hobble the City, which by my calculation produces revenues enough to pay for the NHS. The EU has become a brutal and amoral protectionist fortress, devoid of humanity, and inflicting pain and suffering on the poorest, not only in the developing world but also among our own EU citizens.
Again to draw attention to the noble Lord, Lord Adonis, we can all find lovely quotes from Burke, I think for almost any occasion, but perhaps he might like this one:
“Free trade is not based on utility but on justice”.
The EU wants armies and harmonised taxation regimes, and it wants oversight of national budgets—there is very little that it does not want to control. It is simply beyond me to understand what is attractive about this construct, which is doomed anyway through its total want of accountability.
The right reverend Prelate the Bishop of Leeds quite early in the debate asked,
“what sort of Britain, or indeed Europe, do we want to inhabit?”.—[
His close proximity to me should not make him worry, but I am not confident that he will entirely happy with my answer to his question. He is right to point out that the question is not solely about economic issues. Of course no one voted to be poorer, and no one will be. Having campaigned daily for a Brexit outcome, it was perfectly clear to me that people put other things ahead of economic concerns. People understood, in ways that the metropolitan elite did not, and will not give them credit for, that this country’s historic embracing of the rule of law is the foundation of freedom.
Since the dawn of time, far earlier than the Magna Carta, in these soggy islands—places of such beauty and enduring romance—it was established that we would be governed by consent and not by diktat. The settlement has at intervals been challenged by the Norman invasion, by the Stuarts and, dare I say it, by families like my own, who from time to time got out of control and had to be reined in. These same people I met on the campaign trail also understood why their parents and grandparents suffered and gave their lives so that we, their successors, could enjoy the golden benefits of the rule of law and breathe the sweet air of freedom. I have inherited their passion and, in consequence, ask for this Bill to be given safe passage.
My Lords, if the Whips arranged the speaking order for tonight’s debate in order that I might be provoked into responding to some of the more outlandish comments of the noble Lord, Lord Cavendish, I am afraid that I shall disappoint them and try to stick to my script. I might be in a minority in your Lordships’ House in that I was not old enough to vote in the 1970s European referendum, so I cannot start my speech by saying how I voted back then—but I can start by saying that my whole adult life I have always believed strongly in the European Union and its predecessors. I would probably go further than most Members of your Lordships’ House by saying that I believe strongly in the concept of shared sovereignty at the European level. I believe it is consistent with a belief in shared sovereignty between the four nations of the United Kingdom. I do not see any discrepancy between a belief that that works in the UK and a belief that it works in the European Union as well.
I voted remain. I was dismayed by the campaign that promoted that cause—but I did vote remain. However, I accept the result, and it would be very wrong if this unelected House chose to try in any way to obstruct the will of the people as expressed in June 2016. I shall not support moves designed to do that.
I also wish we had more opportunity now—a year from exit day—for discussion of the immediate implications of the Brexit vote. This is not the time or the place to debate the future of, for example, our development aid relationship with the European Union, or the nature of those trading relationships that should, in my view, be based as much on fair trade as free trade. But it is the time and place to discuss this Bill. I will highlight two points of particular concern to me.
First, there have been many fabulous contributions from noble Lords across the House over these two days about fundamental rights, highlighting in particular employment rights and so on, but I raise the issue of children’s rights. If the issue of consistency of rights and consistency of application of European law in UK law is not handled correctly, if we do not couple that with an appropriate approach to the consistency of the justice mechanisms that exist across Europe just now to protect children, and if we do not take an appropriate approach in the forthcoming immigration Bill to child migrants, it will be the most vulnerable children who fall through the net that is created. We need to be very aware of that. There are many interests that will be promoted in your Lordships’ House in the coming weeks—employment rights and other rights mentioned in the charter—but issues around children’s rights could lead to the worst impact falling on the most vulnerable. We need to be very careful to protect the consistency and application of rights in relation to children in our forthcoming debates.
My second point relates to devolution. While I am sure that there are faults on both sides—I think the Scottish Government need to be a bit more practical and positive in their approach to this issue, as do the UK Government—I cannot believe the situation that the UK Government have got themselves into over devolved responsibilities. The initial devolution settlement was based not just on 20 years of debate, national consensus and a settled will, but on a rigorous application of political and intellectual thought to make sure that the settlement created in 1999 would stand the test of time. Through all the ups and downs of politics in the last 18 or 19 years, the legal responsibilities of the devolved Administrations have very rarely been subject to a successful challenge. That rigour, applied particularly by my noble and learned friend Lord Irvine but also by other colleagues in the Cabinet back in 1997 and 1998, has stood the test of time. To try to overturn that in any way at the moment is either really incompetent or very sleekit indeed. The Government need to respond to this, not by springing amendments on your Lordships’ House at the last minute, but through proper, open and transparent discussion that raises the common frameworks and perhaps, at times, common legislation required at the UK level in some of these areas, but which is firm and clear that, where responsibilities were devolved in 1999 or subsequently, they will continue to be devolved after 2019.
It is a matter of real regret that the Government have not used this opportunity to try to refresh or regenerate the Government of the United Kingdom. If we are to take back control—however much some of us regret the decision and the implications for our interdependent world of this move back towards the nation state—we should do so on the basis that we reinvigorate our democracy at the same time. There is an opportunity here to change the relationship between the UK Government and the three devolved Governments of the United Kingdom. It is not yet too late to take that opportunity, either in the next 12 months or in the two-year transition period, for a combination of common frameworks, with Ministers sharing decision-making at a UK level between the devolved Governments and the UK Government on an equal, respectful basis in certain areas, and for the further devolution of powers to allow the people of Scotland, Wales and Northern Ireland to have full control where that is appropriate. The opportunity still exists and the Government should take it.
My Lords, as several noble Lords have mentioned, and as the Constitution Committee report said, lessons can be learned from the Sanctions and Anti-Money Laundering Bill. That is a sectoral Brexit Bill, not saving legislation and not aimed at policy change. It was explained, variously, as a technical bill, as dealing with deficiencies and as not changing policy—just the same vocabulary used to describe the withdrawal Bill and operations within it.
I will elaborate more fully on some of the lessons. First, all creation of new criminal offences by regulation was taken out, not just those over the threshold defined as “relevant” in the withdrawal Bill, which means sentences greater than two years. When voting on this constitutional point for the second time, there was a massive vote to remove from the anti-money laundering part, where sentences were indeed limited to two years, any new criminal offences. If anything, the case is clearer for the withdrawal Bill: why should “saving” legislation create any new offences?
Secondly, in the anti-money laundering part of that Bill, it was frightening to compare the unlimited, policy-free, mechanistic list of delegated powers with the far richer policy context and predictability of the EU money laundering directive that it replaced as the source legislation. Until amended, this proposed primary legislation gave absolutely no substantive foundation against which to test future secondary regulation. It was without constraints or policy now, empowerment for total policy change by regulation later. I call that a constitutional-level policy change. We have a similar wolf in sheep’s clothing prowling parts of the withdrawal Bill.
Thirdly, with its amendments, the anti-money laundering part is much improved. Nevertheless, businesses are in a more uncertain place because the Bill is no longer set in the richer EU format. Uncertainty is not a good direction of travel for our home-made laws and we should not be inured to it—we can do something about it.
The good news is that the withdrawal Bill aims, so we are told, to save policy context—the idea is right. The bad news is that the legal status is confused; it certainly cannot be case-by-case at ministerial convenience. There are “panic button” clauses giving delegated powers without objective definition and stretchy schedules that expand, sometimes for ever, what you thought had been limited in clauses. The Explanatory Notes say the law is not deficient merely because a Minister considers that EU law was flawed. Such clarification must surely be in the Bill; so must objective qualification of the much overused “appropriate”—that is definitely an alpha wolf, not a sheep.
Businesses have been promised policy continuity. So, in considering amendments around status, legal clarity and interpretation, my test is that, however legislation is saved, it should not mean sacrificing policy. Policy continuity means keeping all relevant factors to assist interpretation or challenge; keeping them after modification, because that has been stated as being only to clean up language; and keeping them for EU-derived legislation, such as directives, under Clause 2. Just as Ministers quote rules and precedents to justify their words in legislation, similar happens when negotiating directives. A great deal is contained in recitals, which are relevant for interpretation by the EU court and regulatory authorities, even though they are not transposed and their content is needed.
In that context, my final point is to ask how EU constraints on delegation of power will be retained. My goodness, we need to get some constraints from somewhere. This has relevance to financial services, where the European supervisory authorities are bound by the Meroni principle. Will the FCA and the PRA be so bound when taking over—and if not, why not? At present, it is the EU that implements international standards, such as Basel rules, via co-decision and providing policy guidance for tertiary legislation. Where will the implementation and policy guidance come from in future against which to measure secondary and tertiary legislation? Will this Parliament have any role, or will the UK be run by delegation and deference—delegation to regulators and deference to the same regulators sitting in international regulatory bodies? Will this Parliament be given comparable time and opportunity for consultation and scrutiny of regulatory proposals? I say to the noble Lord opposite that I should like an opportunity to do here one fraction of what I did in the European Parliament.
Before coming to the Bill itself, I must say something very briefly about where I come from in relation to it.
The overriding reality of our time is globalisation—the ability not only to move goods and manufacturing around the world and communicate across the globe in an instant, but to shift money at the press of a button. This is a world in which multinational corporations have unprecedented leverage and an international financial elite has extraordinary influence. In the past, a sovereign state could to some extent control the power of capital in the interests of the country as a whole. In a globalised world it is simply not possible for one nation on its own to do this. It is only through close co-operation with other countries and building shared institutions that we can build the kind of society we all want.
In his thoughtful and sombre speech, the noble Lord, Lord Hill of Oareford, said:
“Europe is already moving in directions that we have traditionally resisted”.—[Official Report, 30/1/18; col. 1389.]
In particular, he mentioned more screening of overseas investments. For some of us, that is one of the reasons why, in a globalised world, the European Union is of such crucial importance. However, the Bill is about much more than that. As the noble Lord, Lord Wallace of Saltaire, stressed, what about defence and security? What about the essential co-operation necessary in the struggle against terrorism, international crime and cyberattacks? For many of us, this issue is about a great deal more than markets. The European Union is not a guarantee of close co-operation in these areas, but it makes it much more likely. When will we hear about these issues and how they will be achieved if we leave the Union?
Closely linked with the concept of co-operation is the notion of drawing on a larger perspective and a wider wisdom. This country is not the sole repository of wisdom. Here, I turn to the Bill before us, and in particular to the fact that in the transfer of European law into UK law there is no mention of the Charter of Fundamental Rights. The Government have repeated their claim that all the rights safeguarded by the charter are in fact contained in individual laws and that it is not therefore necessary to include it. However, the Joint Committee on Human Rights has done a detailed clause-by-clause analysis of the issue and shown that this is simply not the case. It points out:
“Firstly, some of the rights will inevitably be lost as they derive from membership of the EU … Secondly, Charter rights which are based wholly or largely on ‘general principles of EU law’ will no longer confer an enforceable right. This means a loss of enforceable rights such as Article 1 (human dignity) … Thirdly, a number of the Charter rights derive from the European Convention on Human Rights (ECHR) which are incorporated into domestic law by virtue of the Human Rights Act … Whilst these rights will continue to exist and confer an enforceable right on individuals, the standing is narrower and the remedies are weaker under the HRA compared to the Charter … Fourthly, some of the Charter rights may be reflected in domestic statutes, but may not be as comprehensive as the Charter … for example, the rights to data protection in the Data Protection Bill … Fifthly, some of the Charter rights that are based on EU treaties may be retained by virtue of Clause 4 of the Bill if they are directly effective, but it is not always clear whether these provisions are directly effective. The Government itself appears unsure … Sixthly, some of the Charter rights are based wholly or in part on provisions of the ECHR or other international treaties that have not been incorporated into domestic law, such as the UN Convention on the Rights of the Child”.
Liberty and Amnesty International agree with this analysis. They point out, for example, an issue that is of interest to some of us in your Lordships’ House: that Article 25, on the rights of the elderly and the right of older people to lead a life of dignity and independence and participate in social and cultural life, will be lost. This right is unique and has no equivalent under the ECHR or any justiciable international treaty or convention to which the UK is a party.
I was a Member of your Lordships’ House when the ECHR was incorporated into UK law. I cannot help wondering if the opposition to this that came from some quarters at that time has become refocused to exclude the Charter of Fundamental Rights from this transfer of European Law. I believe that we need it. It acts as a benchmark—an interpretive principle in the light of which human rights as a whole have to be seen and understood. Without it, as the JCR has shown, we are losing rights and remedies that we now enjoy. As the right honourable Kenneth Clarke questioned in the other place, why has the charter been singled out,
“uniquely among all other … law”, not to be saved in domestic law? He asked,
“what evil it has done, what danger they think we are being protected from by its repeal”.—[
That question has yet to be answered.
My Lords, it is a privilege to follow the noble and right reverend Lord with his customary thoughtful speech. I must admit that I agreed with some of it, but not as much as I agreed with the speeches of the noble Lords, Lord Grocott and Lord Trevethin and Oaksey, and the noble Baroness, Lady Deech.
Some noble Lords have suggested that people voted to leave the EU but did not vote to leave the customs union or the single market. I am sorry but that is nonsense. The government-funded propaganda leaflet, the Prime Minister, the Chancellor, the whole remain machine and the global elite stressed over and over again that a vote to leave would mean leaving the single market and customs union, with all the dire consequences that would entail. Of course, the Treasury in its May 2016 dodgy dossier also said that there would be an immediate loss of 500,000 jobs and the economy would crash into recession.
As John Longworth, writing in the paper on Monday, said, either the Treasury economic experts got their model hopelessly wrong or they were deliberately lying. I thought at the time that it was just sloppy modelling for them to be so wrong by as much as 400%. Now it seems the Treasury is at it again with the leaked Project Fear forecasts. I admire its astonishing accuracy. It forecasts a 0.3% reduction in growth every year for the next 15 years. That is amazingly accurate considering that over the last 12 months it has been 400% out. Producing that dodgy dossier once may have been a mistake but its latest leaked analysis by the same discredited economists is clearly a deliberate attempt to foist more ludicrous forecasts on the British public. I find it a very sad day when reports by Her Majesty’s Treasury have less credibility than the Zinoviev letter.
We have this Bill before us because the electorate wanted back control of our money, laws and trade policy, and they knew that by voting leave we would leave the single market and the customs union. When the Bill goes into Committee, I understand that there will be amendments seeking to ensure that no British Government can diverge from EU rules and regulations, and that is what I want to concentrate on. I believe that is foolish and it shows little faith in our Parliament, which will once again be free to properly hold the Government to account. The whole point of Brexit is to give the UK Government and Parliament the right to make our own laws and diverge from EU bureaucracy, bad law, Luddite regulations and the concept of a socialist Europe, which is making us more and more uncompetitive in comparison to the Far East and the USA. I do not want us stuck at the bottom of the regulatory scrapheap making analogue laws for a digital world. We are a great country and we need the freedom to make better regulations.
I ask noble Lords to cast their minds back to Monday of this week, when we debated the 25-year environment plan. What an inspiring document that is—inspiring because it shows how much better our land and marine environment will be when we do not have EU law destroying our fishing stocks, damaging our wildlife and ruining our soil. We can get rid of the wicked CAP, which the EU still boasts is a marvellous achievement. We can ban any plastic products we like without having to wait for EU approval. We can restore our fish stocks. We can impose proper biosecurity regimes to stop our plants and trees being decimated by imported diseases we are currently unable to stop because of the free movement of goods. And of prime importance, we can impose our own much higher animal welfare standards to replace the cruelty of live animal exports, which the EU happily endorses.
We will have the freedom to set our own VAT rates on any products we choose. German car companies paid out billions to US consumers within months of the diesel car scandal breaking. Not one single EU consumer has had a penny compensation because of the cosy, corrupt cartel between EU policymakers and German car firms. I would hope that an independent UK could impose our own air quality standards and ban dangerous polluting vehicles.
On financial regulations, there are those who say that we must not do a Singapore and have a race to the bottom. I agree entirely: we must not race to the bottom, but Singapore has a GDP per capita of $53,000 and ours is $40,000. The cost of living in Singapore is 14% cheaper than London. It is the third in the world for life expectancy and we are the 20th. If that is the bottom, I want to race to it as soon as possible. Singapore has risen to be one of the most successful economies in the world, with an exceptionally high quality of life, because its people embrace free trade and cutting regulation.
When we read yesterday about the head of the London Philharmonic Orchestra, who is a remain supporter, complaining about onerous EU red tape and looking for opportunities outside Europe, we got a snapshot in that tiny area of the dead hand of EU regulation holding back not just our productive industries but our creative ones also.
I have just rushed through a few examples, but in every sector of our economic and public life we are being constrained by poor, bad EU regulation. As the noble Lord, Lord Hill of Oareford, said yesterday, we will need the freedom to move very quickly to regulate for technological change, which the Luddite EU cannot do. We will need the freedom to regulate quickly on artificial intelligence, genetic modification, innovative medicines and treatments to name but three. We need better regulation. We need British regulation. We need this withdrawal Bill, with some technical amendments, passed as soon as possible.
My Lords, that was quite a contribution from the noble Lord. I must say, when I hear Singapore promoted as the vision that we should aim for, I think it gives the lie to where we are going if this Government continue: a country where deregulation abounds and protections are limited. That is where some noble Lords in your Lordships’ Chamber wish to take us.
I will make three points but, first, I must comment on the remarkable speech by the right reverend Prelate the Bishop of Leeds. He challenged us to show good ways of disagreeing well. I think, on the whole, we have met that challenge.
My first point concerns the appropriateness of this House’s making changes to the Bill before us. The noble Baroness the Leader of the House described it as a technical measure, but, of course, it is much more than that. Why else would she implicitly warn the House not to thwart the will of the people expressed through the referendum? Why else would the noble Lord, Lord Dobbs, suggest we are on the brink of disaster, repeating the error made by your Lordships’ House more than 100 years ago in rejecting Lloyd George’s budget? Even the noble Lord, Lord Strathclyde, felt the need to warn us off using our extensive powers.
I am mindful of convention. I know of no threat to the progress of this Bill. Of course it will pass but, equally, we have every right to make substantive changes to the Bill and to send it back to the Commons to allow them to think again. I hope we do. I hope we will ensure a meaningful role for Parliament at the end of the negotiations; that we will make sure that delegated powers cannot weaken environmental, consumer, health and work protections; that the devolution settlement will be respected and the charter of fundamental human rights retained as part of UK law; and that membership of the single market and customs union will continue.
I come now to the negotiations, because we cannot look at the Bill without looking at the negotiations. The Minister ducked this at Oral Questions today. He has another chance. Whatever else he does in responding to this debate, I hope he will spell out what the Government are seeking in negotiations with the EU. What a sorry state those negotiations are in. The noble Lord, Lord Higgins, put his finger on it yesterday: how can you possibly negotiate effectively with the EU when you will not declare what you want? The noble Lord, Lord Baker, valiantly defended the Prime Minister this evening, but it was she who laid down the red lines right at the beginning that have so constrained the negotiation. Subsequently she has given us no vision and made no attempt to reach out to the 48% who did not vote to leave. Not one effort has she made to speak to the nation as a whole; she has given us no strategy and precious little hope. Whatever her virtues, she is simply not leading at a time when the country is crying out for leadership and to be brought together.
As the chairman of the Commons Brexit Select Committee put it this week, after 19 months no one is any the wiser as to what the Government want from the Brexit negotiations. The Cabinet has not reviewed, evaluated or decided on the desired outcome. The gap between Mr Hammond’s aim of a modest change in the UK’s relationship with the EU and Mr Rees-Mogg’s assertion that close association with the EU is unacceptable is utterly unbridgeable.
That of course brings me to the amendment of my noble friend Lord Adonis. I know some noble Lords feel it is premature. My noble friend Lady Smith, the Leader of the Opposition, was clear on that point, and we heard from the noble Baroness, Lady Falkner, about some practical issues concerned with the second referendum. If, however, the terms of the deal in the end are seen by many as unacceptable, surely we should not close the prospect of the public’s having a final say.
If the rush to trade agreements with third countries is detrimental to our environmental health and food protection, if we cannot achieve a frictionless border for Northern Ireland satisfactorily outside the customs union or the single market, if the economy looks very risky in terms of our trade with the EU in the future, or the dawning reality finally breaks that there is no middle way—or, as the noble Lord, Lord Hill, said yesterday, that you cannot have your cake and eat it—it seems to me, though I am no expert, that it is becoming clearer and clearer that there we face only two options. One is a hard Brexit, on WTO rules, with high tariffs, huge economic risks and a desperate attempt to agree free trade agreements with the US and other powerful countries, where, as a middle-ranking economic power, in the words of the noble Lord, Lord Tugendhat, we will be subject to their extraterritorial reach. Alternatively, we could have some kind of close alignment with the EU, but on EU terms and rules, with little or no influence on those rules, which may well change over time to the UK’s detriment. Neither of those options appears very palatable to me. I certainly say to the noble Lord, Lord Blencathra: none of that was available at the time of the referendum. The noble Lord, Lord Armstrong, said that the referendum was full of half-truths, or at least, as he might have said, the protagonists were economical with the truth. But at some point, the consequences will become very clear. Surely we as a country deserve some say in the outcome.
The noble Lord, Lord Hague, attempted to frighten us this afternoon with the nightmare of a referendum merry-go-round. But what if the voting had gone the other way in the referendum? Does anyone think that passionate Brexiteers would have shut up shop and walked away quietly into the night? As Vernon Bogdanor argued this week:
“If the country is willing to pay the price, a referendum would legitimise Brexit in the only way possible. If it is not, the people have a perfect right to change their mind”.
The noble Lord, Lord Strathclyde—I will finish here—said that the Lords is at its best when opposing the Government but on the side of the people. I thought we were doing that when we challenged Mr Osborne’s working family tax credit cuts, but the noble Lord did not quite take that view then. In the end, surely we have to do what is right. To give the public a chance to decide on the terms of the deal is not anti-democratic. They should be given that right.
My Lords, we are coming towards the end of a passionate two days of debate, during which the noble Lord, Lord Butler, suggested that Clause 1 struck a dagger to his soul. I have always thought that the soul is a little more intangible, so a dagger to my heart would be somewhere closer to what I feel—and where the noble Lord, Lord Liddle, started off this morning.
We have heard some hyperbole and passion on both sides of the Chamber. We heard the noble Viscount, Lord Ridley, and the noble Lords, Lord Dobbs and Lord Cavendish of Furness, suggest that somehow there may be Members of your Lordships’ House who are seeking to wreck the Bill or derail it, and who will cause untold damage to your Lordships’ House because we are not taking the 2016 vote or the elected Chamber seriously. With the possible exception of the noble Lord, Lord Adonis, who has obviously spoken for himself, I do not believe that anyone in your Lordships’ House is seeking to wreck this piece of legislation.
“we on these Benches have no intention of derailing it or unnecessarily spinning out debate”.—[
The vote in 2016 was to leave the European Union. The EU (Notification of Withdrawal) Act triggered the legislation necessary for that. This piece of legislation is obviously required to ensure that on the day the United Kingdom leaves the European Union there is a full statute book in place. So far, so good, so necessary. But it is not necessarily a good piece of legislation, and we have heard from right across your Lordships’ House that perhaps amendment is necessary.
We also heard Members of your Lordships’ House talking about 1972 and voting passionately to join the Common Market. We heard one Member say that they were not quite old enough to vote in the 1975 referendum. I do not remember life before we joined the Common Market. Therefore I will look back not to 1972 or 1975 but just five short years—or at least I would have said they were short years, but the noble Lord, Lord Bridges of Headley, pointed out that Brexit years appear to be rather like dog years. In January 2013, the then Prime Minister gave his Bloomberg speech in which he promised reform, renegotiation and a referendum. Why? Was the country divided over Europe? Were people clamouring for a referendum? No. Most ordinary citizens were not saying that the European Union and membership of it were at the top of their list—but the Back-Bench Conservative MPs were. The Prime Minister was throwing a bone to his Back-Benchers; he played a gamble and he lost it. He offered a referendum and said that he would campaign heart and soul to remain—the soul comes in again—and, obviously, he lost that gamble.
After the Conservative Party won the election of 2015, perhaps unexpectedly, we ended up with a piece of legislation that allowed the referendum. Some Members of your Lordships’ House spent day after day, hour after hour debating the EU Referendum Bill—rather fewer than are here talking about the legislation that will ensure we have a full statute book on the day we leave the EU.
One of the things that those of us who were debating the EU Referendum Bill did was listen to the other side. Some of us spent so long listening to the leave side that we could have stood in for them in a debate and been able to rehearse all their arguments for them. Indeed, if the Prime Minister had listened to the leavers, he would have understood that a piece of propaganda—as the noble Lord, Lord Blencathra, called it—would have gone down extremely badly with the leave campaign and that an intervention from a foreign leader would have gone down really badly. But the former Prime Minister did not listen, and the cost of that was a failed referendum and the decision to leave the European Union.
So this piece of legislation is necessary, and no one is going to seek to avoid the legislation entirely—even if many of us hope that the will of the people could lead to an uprising to say, “Give us another referendum, let us free ourselves from Brexit”. In the absence of that, we need this piece of legislation—but it needs amending. It needs amending in terms of the powers of the devolved Administrations—the noble Baroness the Leader of the House said yesterday that power would be returned to London, Edinburgh, Cardiff and Belfast—but this piece of legislation does not do that.
If noble Lords think that this is merely a Liberal Democrat saying that, I suggest that they look at Hansard from last week’s debate in the name of the noble Lord, Lord McInnes of Kilwinning, about the role of devolved Administrations, in which the noble Lord, Lord Duncan, said that the legislation for Clause 11 needed amendment. Will the Minister tell us whether the Government will bring forward amendments in that area? If not, he can certainly expect several amendments to be brought forward—and the same is true of many aspects of the legislation.
In opening the debate a mere 36 hours ago, the noble Baroness the Leader of the House suggested that the Government were going to be in “listening mode”. The noble Lord, Lord Dykes, suggested earlier that the noble Lord, Lord Bates, had been one of the few Conservative Ministers who was popular. Could I suggest to the Minister that he and the Government Front Bench might court some popularity if they do as the noble Baroness the Leader of the House suggested and listen to members of your Lordships’ House, and to amendments brought forward in good faith, to ensure that the legislation is better and returns power to this sovereign Parliament instead of being an executive power grab. There is an opportunity for us to make this legislation much better, and I hope that the Government will listen.
My Lords, when I asked the Government Whips’ Office if I could speak late today, it never crossed my mind that I would be followed by four such very distinguished speakers, who have now filled the Chamber with those waiting to hear their pearls of wisdom—therefore my plan has totally backfired. When I saw such a long and distinguished list of speakers, I hesitated to put my name down, but since then the list has trebled.
I am speaking today because I lived and worked in Brussels for a year, and also in Wallonia for three years. On my return to Scotland, I was appointed the Scottish representative of the European Landowners’ Organisation, and had the occasion to address the European Parliament in Strasbourg. There I first met my childhood hero, Lord Plumb, when he was president of the European Parliament. It is particularly sad that he is now retired from the House, as he would have made so many useful contributions as we face this long and complicated Bill. As other noble Lords have said, this is probably the most important legislation that any of us have had to debate in our lifetime, let alone our children’s, or indeed, in my case, my grandchildren’s lifetimes.
The fact that Brussels decamps once a month and goes to Strasbourg is a complete scandal. That decamp costs a mere €114 million. Nor must it be forgotten how much time it takes to close it down one operation and restart the whole thing, particularly from the staffing aspect and their downtime. I have also done several stints on what was then European Union Sub-Committee D, which in those days covered agriculture and the environment, and I served under three distinguished chairmen. We made several trips to Brussels —although to not much avail, if I am completely honest.
We really are in the most terrible muddle and mess. Every day a different worm pops out of the can and only goes to emphasise the hiatus that the United Kingdom is in. The mind really does boggle as to how things will eventually turn out—and indeed, more frighteningly, when. It is the dreadful uncertainty that is terribly worrying to businesses and institutions across the board, as my noble kinsman Lord Hunt of Chesterton mentioned in his strong contribution earlier today.
Having been involved in the food business all my walking life, I know that food today is incredibly cheap. Forty years ago, 47% of the weekly wage went on food, but today it is in single figures. I remember that 25 years ago during harvest the telephone rang non-stop at lunchtime, with merchants offering me £165 a tonne for good-quality, low-nitrogen malting barley. Oh to be offered that today, especially when one realises what a huge increase in wages and all other farm inputs there has been in those 25 years. If European Commissioners, officials and staff earned the same today as they did 25 years ago, I am not altogether sure that we would have a European Union at all. I declare an interest as I receive a single farm payment, which keeps me roughly sane and solvent.
During my time in Belgium I saw at first hand the gravy train that pulls along the Commissioners, who are unelected and unaccountable to anyone or anything. If they are British, they retire on a nearly six-figure pension and a seat in your Lordships’ House. Currently we have seven ex-Commissioners. In no way do I blame them, but the system really is crazy.
If two countries within the United Kingdom cannot agree on a policy, how on earth can 27 countries do so? And how can you make laws that affect the Greek islands and the Outer Hebrides? Surely it is nothing short of farcical. I believe strongly that the United Kingdom ought to have remained within the European Union and fought long and hard to disband this corrupt and expensive organisation altogether.
My Lords, that is rather like suggesting that one ought to remain inside a burning house in the hope of putting out the fire. I am not sure that I follow the logic of the noble Lord’s argument.
I am in a minority in this House with my views on Brexit—I have noticed that. I am very proud of the way that we in the House of Lords have conducted ourselves over the last 36 hours. I read in the newspapers that we were going to reverse the decisions of the House of Commons and wreck the Bill but, instead, we have had a typically incisive debate. We should be particularly proud of the report produced by the Constitution Committee.
I do not know where I come in the speakers list— 194th or something like that—but I thought that I needed to find something new to say, so I would like to tell the House that there is a blue moon tonight. For those who do not know what a blue moon is, it is not a reference to the Tory party; it is a reference to the fact that there has been a full moon twice in the same calendar month—a very rare thing.
When I got an email from the noble Lord, Lord Adonis—who I hold in very high regard—asking me to support an amendment that we should spend four days on Second Reading, which would mean that we would now be only halfway through, I thought that perhaps the lunar effect was having an effect upon him. Then, when I read that he wanted to suggest that we have a second referendum, I just reflected that we voted on this last year in this House and voted with a majority of more than 200 against that, so I admire his courage and his consistency.
The best speech of many speeches, I think by far, was the one given from the Cross Benches by the noble and learned Lord, Lord Judge. He set it out absolutely clearly, and I feel guilty that I took the advice from the Chief Whip and the Leader of the House and went through the Lobby the other evening, adding to the burden of these Henry VIII clauses. I am impressed that perhaps this is an opportunity for us to take a stand while looking at this Bill. But I have to say that the noble and learned Lord, Lord Hope of Craighead, disappointed me. He actually compared this Bill to Cromwell. He suggested that it was Cromwellian that we were taking powers away from Parliament in the way that Cromwell had done.
In which case I withdraw entirely my criticism. But some people drew the parallel between taking powers away from Parliament and this Bill, whereas actually, if there is a historical parallel, it is the Restoration, because it is returning powers that were given away in the 1972 Act, which this Bill will repeal. Some 20,000 EU laws were brought into British law over which Parliament had no say whatever. So I take with a pinch of salt those who suggest that this is a terrible Bill because it is denying Parliament the ability to decide matters. It is returning to Parliament the ability, once this Bill is passed and we are out of the European Union, to alter the Bills as we see fit.
But I grew out of it.
We are keen on Edmund Burke quotes. The one I would suggest the House might look at is this one:
“The people never gave up their liberties but under some delusion”.
I was under a delusion that the Common Market would be a free trade area. Instead, it has turned into a European Union which has been a tyranny for many of the countries of Europe. The noble Lord looks quizzical. Go to Greece and see what the European Union has done to the people in Greece.
I have no idea what the proportion is, but if the noble Lord is suggesting that they have a referendum then I think he has enough on his plate with trying to persuade the British people that they should have another referendum. This Bill is a major first start in a process which is about taking back control, making our own laws, and being able to police our own borders and spend our own money.
On the devolution issue, as far as Scotland is concerned, because I have nothing to say about Wales, I have to say that it is absolutely hilarious to watch members of the SNP say that there is a major constitutional crisis because they might not have the powers over agriculture, fisheries and other matters which are exercised in Brussels while at the same time arguing vehemently that Brussels should continue to exercise those powers. It is this Government who are going to create the opportunity for those powers to be exercised in the Scottish Parliament. Many noble Lords have made speeches saying that the Bill is defective because there is no amendment to achieve that purpose. It does not require an amendment; it requires people to sit down in a constructive manner to talk about the arrangements that need to be in place in order to ensure that the various nations of the United Kingdom work together. What the SNP is doing is once again turning everything into a constitutional crisis in its efforts to break up the United Kingdom. We should not give it any quarter on that matter, a point which was made very effectively by my noble friend Lord Dunlop.
This Bill is not a vote to leave or remain, it is not a vote on future policy, it is not a vote on whether we have a free trade agreement and it is not a vote on the devolution of EU policy. Let us just think of the volume of legislation that would be required if we did not have some Henry VIII clauses. I looked at the Open Europe 2005 estimate of EU law passed since 1957 and it amounted to 666,879 pages. I have worked out that if Parliament sat for 24 hours a day, seven days a week, and we did that for a year, we would be able to look at each page for 47 seconds. The practical reality is that we need a Bill of this kind to deliver what the people voted for in the referendum. There are people in the Scottish Parliament who say that they will refuse legislative consent. I wish them well if they are going to try to go through all that legislation and legislate for themselves.
I appreciate that I am running out of time, but leaving aside Thomas Cromwell, perhaps I may give a quote from Oliver Cromwell to those in the House who are so firm in their opposition to responding to what the people voted for:
“I beseech you … Think it possible you may be mistaken”.
My Lords, I have never heard the noble Lord, Lord Forsyth, quote someone as left as Cromwell before. In my darkest moments during the referendum I would try to persuade myself that at least one of the benefits was the increasing awareness, familiarity with and affection for their European colleagues that would be engendered in the British people through the discussion. I was prompted in that by an incident that took place 25 years earlier during the 1992 general election, in which I was a candidate. A week before the election it looked as though Labour was going to storm to victory, but in the days leading up to election day our votes, according to the opinion polls, decreased. I was walking through Bellshill in my constituency when a chap came up and said to me, “John, how do you think it’s going?” I replied, “Well, to be truthful, I’m a bit worried about the polls”, at which he said, “Don’t worry about the Poles. Some of us have lived here all our lives and we’ll be voting for you”.
I am not sure that the referendum debate had the desired effect, but in the midst of it, because of the commonplace now of declaring our positions, I have to say that I was anguished at times. I was not decisive on one side or the other. I did not gravitate towards Europhiles or Europhobes. I was what was called a reluctant remainer. I can tell the House that, having watched the course of the negotiations, I have changed my opinion. I am no longer reluctant; I am now a very strong remainer. That is because I believe that we are heading towards a disaster—a halfway house. I think it was my noble friend Lord Hunt who asked earlier why the Government do not outline their objectives. I will tell you why. It is partly because it is a bad negotiating ploy and partly because it would split the governing party. By renaming some of the objectives they are hoping—I believe, and we will see it in a year or two—to get to a position where in all but name we remain in the customs union and the single market.
I say in all fraternity to my colleagues on the Government Benches: all they have to do is look at the Irish border question. It has been mentioned several times, for very good reasons and very emotionally. I, too, feel a degree of emotion but I want to look at it very simply. We all know about the border: 300 miles, more than 200 crossings, 30,000 people a day crossing for work alone and 400,000 commercial vehicles a month. The Government have said, “We pledge to plug that gap, but there will be no hard border”. So they contrive to do it by two promises. It is the implication of putting them together that the Government Benches should examine closely every day.
First, they promised in the framework agreement that there would be “complete regulatory alignment” between Northern Ireland and the Republic of Ireland. Secondly, they publicly responded to the DUP—whom I do not blame—that there would be complete regulatory alignment between the British mainland and Northern Ireland. Let us follow the daisy chain of logic in this. It does not take a genius: my heavens, Jacob Rees-Mogg worked it out. If the British mainland is aligned with regulations in Northern Ireland, which is aligned with regulations in the Republic of Ireland, which is aligned with the rest of Europe—Ireland remains an EU member, noble Lords may remember—then Britain must be aligned with the rest of Europe. The only way to do that is by remaining in the customs union or in the single market. You cannot square the circle in any other way. That is why, within 24 hours of making the declaration, David Davis went on television to row back, saying “We didn’t really mean it”. By the way, David Davis does not think that anyone in Europe watches British television. He guaranteed that it would be written in blood legally when we get to that discussion.
I mention that because it is symptomatic of all the other discussions that are going on. We will end up in the worst of all worlds, because there is a difference between Ireland and Britain in that scenario: Ireland and Europe are making the decisions on the regulations, while Northern Ireland and Britain will be taking them. It is a classic example of the change in our status: everywhere we are free and yet in shackles. We will be shackled by regulations that we have no power to manufacture in the first place.
We all know the phrase, “power without responsibility”. This Government are contriving to give the United Kingdom responsibility without power. We will be, as near as you can get in the trade arena, a vassal state. This Bill can do nothing about that. But there are three things that we can do in the Bill that can shape the ability of the House of Commons to do it. The first is to make absolutely sure that the House of Commons has the ability not just to reject or accept but to shape, compromise, amend and exert the very sovereignty which, it is claimed, we are withdrawing from Europe to accomplish.
Secondly, we must involve the devolved Governments of the United Kingdom in that decision. Thirdly, we must not preclude the chance of going back to the people. I am not asking for a vote. I am not saying that that will be necessary. I think it was the noble Baroness, Lady Wheatcroft, who said last night that we have got into this mess via a referendum. I do not believe that we can get out of it by precluding the legitimacy of another referendum. There is no constitutional reason why we should not do it. Those three elements will greatly assist the elected Chamber in this Parliament to accomplish what is necessary.
Those elements, I remind the House, do not undermine our parliamentary sovereignty. The first represents the exercise of parliamentary sovereignty by enabling the Commons; the second will involve all the democratically elected organisations and institutions in this country; and the third, in the last instance, will give the people of this country the chance when there are new facts and information—new attitudes and explanations—to exercise their ultimate sovereignty. That is what this House can do, and if it does it, it will do a service to the country.
My Lords, I am delighted to follow two noble Lords from Scotland—the noble Lords, Lord Forsyth and Lord Reid. I warm more to the comments of the noble Lord, Lord Reid, at the end of his speech, which point a way forward. We have also heard a number of valuable contributions from Wales in the debate. In this long debate the most poignant moment for me, as for the noble Baroness, Lady Smith, was the contribution of the noble Lord, Lord Butler of Brockwell. He said:
“Clause 1 of the Bill … strikes a dagger to my soul”.—[Official Report, 30/1/18; col. 1411.]
That touched a nerve for many of us and I often wonder, as did the noble Lord, Lord McNally, how I should look into the eyes of my grandchildren when they ask, “How could we have allowed the tragedy of Brexit to occur?”.
There is some merit in coming 186th on the list if one is a Plaid Cymru Peer. There is just the possibility of a few things not having been said, so perhaps I may put forward Plaid’s viewpoint on some of these matters. We regard Brexit as a political disaster for both Wales and the United Kingdom but as democrats we accept that the voters of Wales, for diverse reasons, chose to leave the EU. While there may be a mandate to leave the EU, there is no mandate whatever for any specific new relationship with Europe or the world. So while I accept that the Bill should have a Second Reading I reserve judgment on its Third Reading, depending on how it is amended between now and then.
I accept the need for continuity legislation to avoid uncertainty about the fundamental rights of citizens, employees and consumers; and what trade rules apply when Britain leaves the EU. As all existing EU regulations will automatically carry over on
Other legislation may deal with the transition period or what practical difficulties might arise, although there are also implications for this Bill. The real dangers arise from giving Ministers Henry VIII-type powers. If the Bill goes through in its present form, can we adjust our order-making procedures to allow both Chambers to amend statutory instruments, and have the devolved Administrations agreed how they would handle these matters?
In that context, as the noble Baroness, Lady Finlay of Llandaff, the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Thomas of Gresford, observed, Clause 11 is wholly unsatisfactory. Political parties in all three devolved territories have stated that it is not acceptable. The Government recognised this during Commons debates but failed to bring forward amendments on Report. Why was there the delay? Clearly, there must be mechanisms to avoid market distortion within the UK unitary market. Some have proposed a statutory UK council of Ministers. If that were to transpire it must be a council of equals, not a consultative fig-leaf. The lack of progress on this matter is causing immense frustration in Cardiff, as in Edinburgh. It is feared there that the UK Government are using Brexit to roll back areas of devolved responsibility. Two weeks ago, the National Assembly in Cardiff voted unanimously for Wales to have its own continuity Bill, so that all powers returning from Brussels which relate to devolved matters will automatically transfer to devolved competence. Every party, including the Conservatives and even UKIP, supported that resolution.
Another question is how the final deal will be ratified. Both Houses of Parliament and the devolved Assemblies should be required to ratify it. It is essential that the deal includes some new type of relationship that allows ongoing trade between the UK and the European mainland, particularly for manufacturers and agricultural products.
An EEA-type customs union relationship might be an acceptable compromise. It would probably resolve the difficulties in respect of Gibraltar as well as Ireland, to which the noble Lord, Lord Hain, spoke so forcefully yesterday. If, however, by the Government’s self-imposed deadline, negotiations fail to reach a deal and we look over that horrible cliff edge, the consequences will be devastating. In those circumstances, the people must surely be asked if that is really what they voted for in June 2016. The people have the right to change their mind. They should have the final word on any hard Brexit, by way of a confirmatory referendum. If the voters then rush over that cliff edge, so be it; but if, in that new dawn of stark reality, they decide, “No, that’s not what we want”, then their judgment should be respected and we should step back from this whole sorry saga.
I shall not vote against Second Reading, but I shall put down amendments to give MPs a chance to think again and, even more importantly, as the noble Lord, Lord Reid, said, to give a hook for the other Chamber to address these issues. I only hope that the other place will, by then, have found the courage to make a stand and be counted on such momentous decisions.
My Lords, it is a pleasure to follow the noble Lord, Lord Wigley, as it always is. It is also a pleasure to follow 185 other speakers; but I do not envy the Minister who has the job of summing up the debate.
Reference has been made several times to the Third Reading of the European Communities Bill in 1972. I have to confess that I, too, was another person who participated in that debate. My noble friend Lord Baker referred to the speeches by Michael Foot and Enoch Powell. He did not refer to my maiden speech, illustrating what the writer Mackworth Praed meant when he referred to,
“a maiden speech,
Which all men praise, but none remember”.
If I have a dagger to my heart, it is the opposite to that of the noble Lord, Lord Butler. The dagger to my heart is that I strongly supported our joining the European Community at that time. Quite why I and others over subsequent years developed increasing doubts about the European Union is illustrated by the Bill before the House, because it incorporates both visibly and when you dig into the Bill such a huge amount of EU law covering all sorts of things, from zoos to human rights, beaches, canals, immigration, extradition, foreign policy mechanisms, policy in north Africa and overseas aid. At the time of the 1972 debates, we were assured by the law officers that the supremacy of EU law was confined “essentially to economic matters”. Those were assurances that were repeated both by the Prime Minister in 1972—Ted Heath—and by Harold Wilson in 1975 at the time of the other referendum. Some 12,000 pieces of legislation later, and after Nice, Maastricht, Amsterdam and Lisbon, we can clearly see why many people like myself think they were mistaken to believe the assurances that we were given.
We had at the opening of this debate excellent speeches from the Leader of the Opposition the noble Baroness, Lady Smith, from the noble Lord, Lord Newby, and from the noble and learned Lord, Lord Hope. It was particularly excellent that they made it quite clear that they did not intend to obstruct this Bill and that they approached it in a constructive spirit. I totally agree with all three of them that there is great need and scope to amend this Bill in certain crucial areas.
A lot of concern has been focused on the so-called Henry VIII clauses and the number of statutory instruments that will flow from this Bill. This is, of course, the mirror image of the problem that we had when we joined the European Economic Community in 1972. Section 2(2) of the 1972 Act allowed EU law to have legal effect in the UK by delegated legislation. Some of that delegated legislation was by Order in Council and directives that totally bypassed Parliament. However inadequate the procedures that we are examining tonight are, they were even more inadequate in 1972. None the less I do not dispute for one minute that it is quite right that this House should seek to strengthen the safeguards, although some wild things were said in the House of Commons such as that this Bill could be used to alter the composition of the House of Lords or to postpone the date of the next election. The noble Lord, Lord Grocott, made a powerful speech. He referred to the powers of the House of Commons. Statutory instruments are not government by fiat; they are a parliamentary procedure. If you object to something, turn up and vote against it. As has been said in this debate, it is not easy to see an alternative to the use of statutory instruments. Given the huge volume of legislation, it would be quite impractical to incorporate it all by primary legislation.
These are serious issues, but some of the speeches that we have had, although serious, were not really about the merits of the Bill but criticised the Government’s tactics in the negotiations as a means of getting a second referendum on to the agenda and into the debate. The noble Lord, Lord Mandelson, who I see in his place, was rather flirtatious—rather triangulating—about this question. He said he had been of the opinion that the referendum ought to be binding but it was no longer axiomatic. As Clemenceau once said to Lloyd George after an ambiguous speech: “Pour ou contre? Oui ou non?”. We all know which way, in the end, the noble Lord is going to go on that question.
The Opposition present the phrase “the single market”, which they parrot all the time, as though by finding a phrase they had found a policy. They never go beyond the phrase to explain why a free trade agreement would be worse than membership of the single market. We know that if you export into another market without being a member of the single market you have to observe the rules, just as many countries do—many countries that have increased their exports to the single market more than we have, faster and to a larger extent. The noble Lord, Lord Mandelson, referred to the customs union. I wondered whether it was the same distinguished noble Lord, Lord Mandelson, the Commissioner who used to preach the virtues of free trade—that it was a spur to productivity and helpful to consumers—as he was defending without further argument, just by the phrase, a customs union that imposes very high tariffs on food and goods, including textiles and clothing, from poorer countries. I found that very difficult to comprehend.
I regret that this country has been so divided after this referendum and that some people have been so upset by the result, but that is no excuse for caricaturing Brexit as some dangerous extreme nationalism. Brexit is not a rejection of the values that we share with Europe, those values being human rights, democracy and the rule of law. Some Liberal Democrats were cynical and dismissive of the Prime Minister’s call for a special deep partnership with the European Union and called it just rhetoric, but why should we not have outside the framework of the EU co-operation between universities and in science and technology just as Switzerland does. Is Switzerland any less European by being outside the European Union? No, it is not.
Yes, Brexit is about self-government, sovereignty and making our own laws through our own Parliament rather than through a Parliament in which we have only 15% of the share of the votes. Millions of people voted for this because they believe in the nation state and that the nation state and democracy are two sides of the same coin. That is what people voted for and this Bill is necessary to facilitate that. It requires amendment and improvement but it should be given, expeditiously, a Second Reading.
My Lords, I was going to start by saying that the image I cannot get out of my head from these two days of debate is that of the noble Lords, Lord Cormack and Lord Lamont, sitting in the bath singing “Je ne regrette rien”, but then my noble friend Lord Kirkwood pinched my line—he will be hearing from my lawyers, although I cannot afford any of the quality in this House.
Like many noble Lords, we on the Lib Dem Benches hugely regret Brexit. We fully understand the lack of belief that the noble Lord, Lord Armstrong, expressed in the “sunny uplands”. My noble friend Lady Humphreys impressed on us forcefully the harm that pulling out of the single market and customs union would do to Wales, as did the noble Lord, Lord Wigley. My noble friend Lord Razzall said the same about business across the UK. So far, so Brexit. Had you asked me last spring what was the topic of the inappropriately named great repeal Bill—which as my noble friend Lord Newby pointed out early in the debate was neither great nor repealing—I would have retorted, in a nod to Bill Clinton, “It’s about Brexit, stupid”. I am older and wiser now: the context of the Bill might be Brexit, but the content is about nothing less than the constitutional and legal integrity of this country. As the noble Baroness, Lady O’Neill, said, that is what we must concentrate on.
I am afraid that the noble Baroness, Lady Morris of Bolton, was wrong when she said in her speech last night that “no one ever said” that Brexit would be “easy”. I found a list of 11 such culprits, among them no lesser luminaries than Liam Fox, John Redwood and Michael Gove. Another favourite adjective is “simple”. Brexit Secretary David Davis breezily said:
“It’s very simple. At the moment we leave, Britain must be back in control. And that means EU law must cease to apply. To ensure continuity, we will take a simple approach”.
It is all going to be a piece of cake—maybe even a piece of Boris Johnson’s cake, the type you can have while also eating it. But as the noble Earl, Lord Sandwich, said, that gives you indigestion.
Besides ease and simplicity, the other assurances we were given about the nature of the Brexit process were of certainty and clarity. In her foreword to the White Paper last March, the Prime Minister said the Government’s first objective is to provide,
“as much certainty as possible as we move through the process”.
She referred to the Bill as an essential part of the plan for clarity and reassurance. That is not what the Government are delivering, and my noble friend Lady Kramer deplored the instability being created for businesses and individuals. The problem, as the noble Lord, Lord Higgins, said, is that they cannot even tell us where they want to go. This is, suggested the noble Lord, Lord Cormack, because of too many back-seat drivers. For goodness’ sake, choose the destination, demanded the noble Lord, Lord Bridges.
The noble Lord, Lord Leigh, reproached those he feared were talking down our negotiating position—but I think he needs to find the mote in his own Government’s eye. Because, as the noble Baroness, Lady Boothroyd, sagely observed, it is the side that is supposedly winning that is blowing a fuse. It says everything about our current, sorry situation that although the EU can secure consensus among 27 countries, the British Cabinet cannot achieve consensus among 27 Ministers.
The task of scrutinising and reforming the Bill is huge. We are fortunate to have had the pioneering contribution in debates in the other place, and since, of the former Attorney-General Dominic Grieve. We must pick up the baton. We are aided in that task by superb briefings from experts from many organisations, and now by the hugely valuable report from the Constitution Committee, which warns us of “uncharted territory” and,
“a legal undertaking of a type and scale that is unique and unprecedented”.
It also says, as many have quoted, that the Bill is,
“fundamentally flawed from a constitutional perspective in multiple ways”, and,
“as drafted is constitutionally unacceptable”.
It is certainly not a boring Bill, as the noble Lord, Lord Hill, feared.
The noble Lord, Lord Dobbs, warned that there must be no attempt,
“to make a constitutional Horlicks of this Bill”.—[
Well, that is already the case. We will have to smooth out the lumps with some very rigorous stirring.
It is extraordinary, considering the rhetoric about regaining sovereignty, that the first defect we will have to deal with is that Ministers rather than Parliament are taking back control. As the noble Lord, Lord Lisvane, who as we all know is a little bit expert on these matters, said,
“if the Bill before us is enacted without significant amendment, it will represent the largest single peacetime transfer of power from Parliament to the Executive”.—[
Apparently, these are not Henry VIII but Cromwellian powers—though whether Thomas or Oliver of that ilk, I will not adjudicate. As the noble and learned Lord, Lord Judge, warned strongly in this debate, just as he did on the “Today” programme yesterday, when he even managed to subdue John Humphrys:
“We need to wake up to this”.
Perhaps this Bill can be the catalyst for a wholesale reform and improvement in the processing of secondary legislation, as several noble Lords proposed. After all, as my noble friend Lord Sharkey commented: “Sifting is not scrutiny”. The second challenge is to sort out how, in the words of the Constitution Committee:
“the Bill risks fundamentally undermining legal certainty in a number of ways”.
That is quite a contrast to the certainty that the Prime Minister promised. This is because of lack of clarity about the creation, status and interpretation of retained EU law and how it can be challenged.
The noble Lord, Lord Norton of Louth, my noble friend Lord Beith and the noble and learned Lords, Lord Mackay of Clashfern and Lord Judge, highlighted the anomaly of preserving the supremacy of EU law post exit, while the noble and learned Lord, Lord Thomas, warned about undermining the independence of judges. The committee’s suggestion, to give all retained law the status of primary legislation, is one we will no doubt want to examine very carefully.
Many noble Lords have rightly opposed the proposed exclusion of the European Charter of Fundamental Rights, as do we on these Benches. The charter is the key to unlocking the meaning of EU law and it makes no sense to exclude it when that law is itself being kept. Why, as my noble friend Lady Hamwee asked, is it,
“singled out as the exception to … continuity”.—[
The noble Lord, Lord Wilson of Dinton was similarly baffled by its exclusion. The noble and learned Lord, Lord Goldsmith, recalled that the charter adds not only rights absent from the European Convention on Human Rights but also remedies. The noble Baroness the Leader of the Opposition reminded us that David Davis had himself taken a case based on the charter to the ECJ, so it is rather hypocritical of him to deny this legal remedy to others.
The great worry articulated by many noble Lords and noble Baronesses, and which we on these Benches share, is that the legal framework of rights and protections built up over the last 45 years will be at risk—including those relating to inequalities and human rights, employment, the environment and public health, and other fields. The noble Lords, Lord Cashman and Lord Triesman, fear the risk of scapegoating and reminded us of the vow “never again”, and the noble Baroness, Lady Campbell, fears the loss of disability rights. Despite the Government’s assurances, the freelance comments from some Ministers looking forward to slashing red tape have not allayed those fears.
I am grateful for the report of the Joint Committee on Human Rights and will be perusing it with care. In addition, as the noble Baroness, Lady Kennedy, said in respect of criminal measures like the European arrest warrant, and the noble Baroness, Lady Sherlock, said in respect of family law, it is impossible for the UK to unilaterally deliver reciprocal arrangements. I would suggest to the noble Lord, Lord Hogan-Howe, that the Metropolitan Police are very keen to stay in Europol and to have access to EU databases
Many noble Lords spoke of the threat to the devolution settlements. The noble and learned Lord, Lord Hope, was astonished at the Government’s failure to respect them and said their changes were naive and very damaging. My noble friend Lord Purvis and my noble and learned friend Lord Wallace of Tankerness raised similar fears, while my noble friend Lord Thomas of Gresford thought that the best thing to do would be to remove the devolution provisions from the Bill and start again.
In addition, there is particular concern about the effect of Brexit on the peace in Northern Ireland and the all-Ireland integrated economy that has flowed from the Good Friday agreement. Many noble Lords, among them former Secretaries of State for Northern Ireland, expressed this concern, which we fervently share.
In our consideration of this Bill, we will want to pay some attention to the lack of clarity about what happens next autumn. Parliament and the people need to keep control of the country’s future through a meaningful vote in Westminster and a final say for voters, in which they have the option to choose an exit from Brexit. A transitional agreement and a long-term agreement will mean a lot of rewriting of the Bill, but we cannot yet see how. Many noble Lords supported the option of a final say for citizens and that this should be an option after a meaningful vote in Parliament. Indeed, David Davis and Jacob Rees-Mogg have in the past supported such a two-step process, with a confirmatory further referendum once the facts are known.
In conclusion, we on these Benches believe that Brexit would be a disaster for this country, not only economically but socially and environmentally. This Bill threatens to ravage the constitutional and legal fabric of the UK and its parts. We have our work cut out. We will need the input not only of the Brexit anoraks, among whose number I proudly count myself, but of every single legally and constitutionally informed brain, many of whom have spoken impressively in the last 36 hours.
The sniping directed at this House for daring to subject this Bill to forensic scrutiny is far off the mark. Far from being seen as sabotage, I believe there will be some gratitude for our efforts in making this Bill fit for purpose in all but the most ideologically blinkered circles. As my noble friend Lord Beith said, we are just trying to fix the steering wheel and get the Bill through its MOT.
My Lords, this has been the most extraordinary debate, has it not? We have heard from former judges, Permanent Secretaries, EU Commissioners, MEPs, Cabinet and Brexit Ministers, and former Speakers, Leaders and Chief Whips of your Lordships’ House. We have heard from former ambassadors, negotiators, Attorneys-General, high commissioners and governors, party leaders, Chiefs of Defence, trade unionists, farmers, a police commissioner, a Clerk of the Commons and a Lord Chancellor—to say nothing of current lawyers, Bishops, academics and medics. It is a reminder to our detractors that what this House brings to our democracy is not final decision-making but the wisdom of years of experience and public service devoted to the future of our nation and the interests of citizens. Decry their expertise, and the Government risk losing both credibility and help.
Hearing virtually all 188 speeches has been a privilege, as well as quite a bit of fun, with the call for help from the noble Baroness, Lady Northover, from “Hope, Judge and Pannick”; the discomfort of the noble Earl, Lord Sandwich, at his father’s posthumous victory over him in the referendum outcome; the salivation of the noble Lord, Lord O’Donnell, at the thought of raising tax by secondary instruments; and the invitation of the noble Lord, Lord Lisvane, invitation to three imaginary aunts to see “Reservoir Dogs” or “The Texas Chainsaw Massacre”, conjuring up images of the nights of relaxation spent by the noble Lord, Lord Callanan, when released from the Chamber. But there was also some solemnity. Few will forget the words of the aunt of the noble Lord, Lord Krebs, his only family member to have survived the war in Nazi Germany, who said that it was mad,
“to begin to take apart the structure that we put in place to prevent this happening again”.—[
That was a poignant reminder of what the EU is all about, as my noble friend Lord Radice recalled from his 1955 bike trip across Europe. Perhaps that is why Clause 1 is like a dagger to the soul of the noble Lord, Lord Butler.
Meanwhile, the right reverend Prelate the Bishop of Leeds invoked Martin Luther King with:
“If we do not know what we … die for, we have no idea what we … live for”, then asked:
“Once we have done Brexit, then what? What was it for? Who do we think we are?”.
He stressed that the answer should be about human flourishing and a common good. He also lamented the atmosphere around Brexit, where arguments that are inconvenient are ridiculed, and where there has been a,
“normalisation of lies and … demonising of people who … venture to hold a contrary view”,—[
With only the rare exception, these near-200 speeches have all said that we are not questioning that we will leave the EU and that, to do so, we must have everything ready in time. But the Bill is not yet—in the words of the noble Lord, Lord Hague—in its “perfect, finished form”, able to bring EU law into our legislation. It fails to give Parliament its rightful say. We need, in the words of the noble Lord, Lord Cormack, an assertion not an abdication of parliamentary democracy.
As the Constitution Committee said:
“The Bill as drafted is constitutionally unacceptable”.
In seeking to meet the “essential” but “unprecedented” task of converting EU law into domestic law, it risks “fundamentally undermining legal certainty”, causing,
“constitutionally problematic uncertainties and ambiguities”.
Furthermore, the Bill,
“represents a challenge for the relationship between Parliament and the Executive”, and grants Ministers “overly-broad powers” and,
“greater latitude than is constitutionally acceptable”.
To quote the right reverend Prelate Bishop of Leeds— I am sorry, he is popular today—again,
“if ‘taking back control’ by Parliament is to mean anything, it must mean refraining from bypassing the essential scrutiny that Parliament is … required to provide. Hard parliamentary scrutiny might be inconvenient … but the … consequences of granting Ministers unprecedented powers … must be considered, as they will … change our assumptions about democracy”.—[
Much has been said, so I will touch on just five areas. First, despite the Government saying that they would bring over all current rights and protections, the Bill in fact specifically excludes the Charter of Fundamental Rights, as covered by my noble and learned friend Lord Goldsmith. It also fails to guarantee that protections cannot later be weakened by secondary legislation. We will work to give the retained law the solidarity of primary legislation. Secondly, it fails to respect the devolution settlements, grabbing back to Westminster non-reserved areas that reside in Cardiff, Edinburgh or Belfast. Thirdly, still on power grabs, it takes to Ministers, rather than Parliament, swathes of decisions relating to the returning law, while creating legal uncertainty. Fourthly, there remain big questions as to whether the future of the Good Friday agreement has been factored into the Government’s thinking. Fifthly, it would be for Ministers alone—not Parliament —to decide on the withdrawal deal, on any transition accord and on the framework for our future relations with the EU. That is not acceptable.
Just as, with Article 50, a court decided that it should be for Parliament, not the Crown prerogative, to take that momentous step, so it must be Parliament—not No. 10—that takes these enormous decisions that will impact across the nation on our future trading, security, and every other relationship with the EU 27. This is also why I cannot support the amendment from my noble friend Lord Adonis.
We need to amend the Bill to give Parliament the say on these complicated, vital issues—Parliament, where Ministers can be challenged, as the noble Lord, Lord Bichard, said, where the implications of the deal can be examined and debated, and where decision-makers are then accountable for their deeds. Perhaps at that stage the elected House of Commons might judge that it needs a people’s mandate, but that is for them, then.
For the moment, our role is to question the Government’s negotiating strategy—assuming they have one—and examine the secret evidence on which it is based, though as the Times says,
“voters have the right to see what is being done in their name”.
We therefore welcome the decision of the Commons earlier today to require the Government to hand over their impact assessment to the Exiting the EU Committee. Can the Minister confirm that this House’s EU Committee will receive the document on the same terms? Once more people have read it, perhaps many will side with the Justice Minister, Philip Lee, who says that if the figures are right, there is a “serious question” over whether a Government could legitimately lead a country along a path that the evidence and rational considerations indicate would be damaging. In the words of my noble friend Lord Liddle, the thrust of our argument is that we must challenge the vacuum left by this hapless Government and that Parliament must be placed centre stage in the coming negotiations and approvals. Just as the European Parliament has a vote on the deal, so must our Parliament, including on any proposal for the Government to walk away without a deal.
Recently, we have heard a new word—BINO, or Brexit in name only—which the lifelong Brexiteers so fear. I do not know about that. I do not know how long the transition should be or on what terms, or exactly what arrangement would best protect our jobs, health and social services, children’s and citizens’ rights and the future of our grandchildren—and yes, I have a six day-old grandson. So, for Ilyas’s future, this is important to me. Although I do not know the answers to all that, I know that those judgments must not be made simply by a Prime Minister to protect herself from dissidents in her own party, but by Parliament in the interests of the country.
So, as the Minister rises to respond, I ask him: to guarantee that these wider, national interests will guide the hands of negotiators; to listen to the calls from across this House to amend the Bill to restore powers to Westminster, not No. 10, and provide legal certainty for the courts; to ensure that the Government will preserve both the Good Friday agreement and the devolution settlements; to work with noble Lords in Committee to safeguard the consumer, environmental and employment rights from any change without primary legislation; perhaps to respond to the suggestion from the noble Lord, Lord Warner, to pause the Bill while the Government make the necessary amendments; and, above all, to defend the right—no, the duty—of this House to advise him and the Commons on the detail of the Bill. That is not much to ask.
My Lords, the nature of the debate that has taken place over the past two days has shown the value of the expertise that this House brings to the legislative process. I totally agree with the noble Baroness, Lady Hayter, on this.
The legislation we have been debating is of great consequence for the country and is key to delivering a functioning statute book on
I am sure noble Lords will understand that the late hour and time do not allow me to respond to each speaker individually—I am sure that noble Lords will be delighted to know that. However, it is clear that this debate has benefited from the extensive personal knowledge and professional experience in this place. Indeed, as the noble Baroness, Lady Smith, set out in her opening address, this Bill presents an opportunity for the Government to avail themselves of the genuine expertise on offer in this place.
I know that the noble Lord, Lord Adonis, has tabled a Motion, to which I will respond shortly. I should like to acknowledge at the outset the frustration and regret which many of your Lordships have expressed in this debate over the outcome of the referendum. But we are not here today to revisit the question of having a referendum, or to examine the reasons why people voted the way that they did. The withdrawal agreement and implementation Bill, which will come before Parliament, will be the opportunity to debate and scrutinise the domestic legislation implementing the final agreement we strike with the EU. Therefore, again in the interests of time, I will not address all those points today. Before I come to the noble Lord’s Motion, I will address the contributions made by other noble Lords on the subject of this Bill over the last two days. I will attempt to cover the main points but will also place a letter in the Library answering questions about the Bill that I have not covered in my answer.
There has been much discussion of the delegated powers within this Bill. I pay tribute to the noble Lords, Lord Newby, Lord Lisvane, Lord Strathclyde, Lord Bridges and Lord Tugendhat, the noble and learned Lord, Lord Falconer, the noble Baronesses, Lady Mallalieu and Lady Taylor, and many others who have spoken eloquently on this issue. I hope that noble Lords will agree that the power to correct deficiencies in retained EU law arising in consequence of the UK’s withdrawal from the EU is essential to achieving the core purposes of this Bill: to ensure that our statute book continues to function on exit, providing certainty and continuity for both businesses and individuals. The Government do not propose delegated powers lightly. We are committed to avoiding the twin spectres of permissions to do too much and permissions to do too little. The power is broad but limited and is, crucially, a time-limited solution to a unique problem. We want to strike the right balance between scrutiny and speed, and to ensure that the Government can complete this exceptional task in time for exit while tailoring the powers as tightly to their purpose as possible. It is important that there is no slack in a power of the exceptional type needed here. The Government do not ask noble Lords to accept on trust how they will be used. The correcting power was already adjusted in the other place to limit the scope and put the Government’s policy even more firmly in the heart of the power.
I have heard the concerns raised in this House. Be in no doubt that the Government are in listening mode and are willing to consider constructive suggestions for change. Many noble Lords have already made useful suggestions, including the noble Lord, Lord Lisvane, the noble Baroness, Lady Taylor, my noble friend Lord Hodgson, the noble Lord, Lord Butler, the noble and learned Lord, Lord Falconer, and many others, and I am confident that there will be further helpful suggestions to come in Committee.
I now come to the scrutiny procedures for the secondary legislation which will be made using the powers in the Bill. I of course recognise that the House has a strong record of scrutiny of secondary legislation under the auspices of the Secondary Legislation Scrutiny Committee. The Government have always wanted to ensure that there is sufficient scrutiny of the secondary legislation to come. While major policy change is for other Bills, the Government introduced this Bill with triggers for the affirmative procedure on all the key powers. There will be many SIs under the Bill which contain small and technical amendments which will not substantially change how the law operates for firms or individuals in practice. The affirmative procedure would be disproportionate in those cases.
To provide greater clarity on this point, the Government have published draft SIs to show the types of legislative changes that would be made under each procedure. We have always said that we would listen to Members of both Houses in the passage of this Bill. In that vein, the Government were pleased to accept the recommendation of the Procedure Committee in the other place. Those amendments ensured that Ministers must submit SIs that they are proposing to make under the negative procedure under the three principal powers in the Bill—Clauses 7, 8 and 9—to a sifting committee, which will consider the appropriateness of the procedure.
I know that noble Lords will want to ensure that the expertise of this House is properly brought to bear on secondary legislation. I share this view. As my noble friend the Leader of the House set out yesterday, we will bring forward proposals in due course following appropriate consultations.
I will briefly address the points raised by the noble Lords, Lord Wilson of Dinton, Lord Brown of Eaton-under-Heywood, Lord Howell and Lord Storey, the noble Baronesses, Lady Hamwee and Lady D’Souza and many others regarding the Charter of Fundamental Rights. The UK has a proud tradition of respecting human rights. Leaving the EU does not and will not change this commitment. This includes children’s rights, which will of course continue to be protected under the Children Act 1989 and through our remaining party to the United Nations Convention on the Rights of the Child. I hope that this reassurance will aid the noble Lords, Lord Russell, Lord McConnell and Lord Storey, and the noble Baroness, Lady Massey, and I thank them for raising this important issue.
The Government have been unequivocal about this. Our intention has always been that, in itself, not incorporating the charter should not result in a significant loss of substantive rights. This is because the charter only reaffirmed the rights which were already protected under EU law, which will now be brought into UK law by this Bill. It is not, and never was, the source of those rights. The Government have also published a non-exhaustive memorandum setting out for each provision of the charter where the underlying rights will continue to exist as part of retained EU law or domestic law or the common law, but the simple fact is that leaving the EU will inevitably result in a change to the current arrangements. Therefore, it just does not make sense to retain the Charter of Fundamental Rights of the European Union. The clue is in the title; the charter applies to EU institutions and member states, but it applies to member states only when they are acting within the scope of EU law. We will not be a member state, nor will we be acting within the scope of EU law once we leave the EU. As such, the charter itself will not be converted into UK law, and I agree with the remarks made on the subject earlier in the debate by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Deech.
We have heard several contributions concerning the interpretation of retained EU law in Clause 6. This is not surprising, given the exemplary legal minds in this House, and I will endeavour here to speak to the concerns raised by the noble and learned Lords, Lord Judge, Lord Brown of Eaton-under-Heywood and Lord Falconer, and the noble Lord, Lord Kakkar.
I also extend my thanks to the Constitution Committee for its report, which many noble Lords have made reference to in this debate. This is a long and detailed report, and the Government will consider it carefully. From the beginning we have been committed to working collaboratively with parliamentarians to improve the Bill wherever possible.
The Government have heard the concerns raised in relation to whether and to what extent our UK domestic courts and tribunals should have regard to post-exit decisions made by the Court of Justice of the European Union or to anything done by the EU and its other entities, when interpreting retained EU law. The UK is leaving the EU. This will end the direct jurisdiction of the CJEU. For our courts to remain bound to the future case law of the CJEU would be to undermine the clear position and ignore the reality of our withdrawal. It would also limit the discretion and independence of our courts, whose judicial authority we had sought to return.
We have a world-renowned judiciary, many of whose former members, I am pleased to say, are now in this House, and the Bill’s position in Clause 6(2) reflects the Government’s confidence in the judiciary’s independence and expertise. With this in mind, I emphasise that Clause 6(2) is intended to reflect in statute our strong belief that the courts are best placed to determine the right approach to questions of interpretation concerning retained EU law.
Clause 6 therefore provides that our domestic courts are not bound by post-exit decisions made by that court, as well as anything done by an EU entity or the EU itself, on or after exit day. The courts, however, may take such things into account if they consider it appropriate to do so.
We believe this provides a clear and certain position for our courts following our departure from the EU. Again, however, the Government have heard the concerns raised in this House over the last two days, and from other sources previously. I know that my noble and learned friend Lord Keen is eager to engage with your Lordships on these provisions over the coming months.
He told me to say that. The wealth of expertise and experience in this House is ideally suited to the task of considering and agreeing an approach which can command the broadest possible confidence. I hope that this leaves your Lordships in no doubt as to how seriously we take these questions, and I hope that we can continue to engage constructively throughout.
I know that devolution, perhaps more than any other issue, has featured in your Lordships’ contributions over the past two days. I pay particular tribute to the noble and learned Lord, Lord Hope, for his constructive remarks, of which I have taken careful note. I also thank my noble friends Lord Dunlop and Lord McInnes, the noble Lord, Lord Kilclooney, and many other noble Lords for their contributions.
Our priority is to ensure that our withdrawal from the EU is as smooth and orderly as possible for the whole of the UK. The Government remain committed to the devolution settlements. I agree with the noble and learned Lord, Lord Wallace of Tankerness, that this presents an opportunity—which the Government have seized—for sincere and mature co-operation to find consensus. The Scottish and Welsh Governments agree that there are areas where common frameworks are necessary. The Government agree that in areas where they are not necessary, those powers should and will be a devolved responsibility. I agree with the noble Lord, Lord McConnell of Glenscorrodale, that after we leave the EU they will be continue to be able to do anything that is now within the competence of the devolved Administrations. There will of course be a need for common frameworks in some areas, as the noble Lord recognised, but the outcome of the UK leaving the EU means that more decision-making powers will be with the devolved Administrations.
As your Lordships are aware, we have made a commitment to bring forward changes to Clause 11, and this commitment remains absolute. We are engaging in intensive discussions with the Scottish and Welsh Governments on what those amendments will look like, and we are making good progress towards the right outcome. The Chancellor of the Duchy of Lancaster will travel to Edinburgh and Cardiff this week to further discuss our proposed amendments to Clause 11, which I hope will reassure the noble Lady, Baroness Finlay, and others, on her point about proper consultation with the devolved Administrations. Any such amendments to Clause 11 will of course need to speak to the concerns of the Scottish and Welsh Governments, while ensuring maximum certainty once we have left the EU. In the absence of a Northern Ireland Executive, we are working closely with the Northern Ireland Civil Service, and we are doing all we can to restore devolved government to Stormont.
Closely linked to these discussions is the work being carried out on future frameworks, guided by the principles agreed with the Scottish and Welsh Governments at the Joint Ministerial Committee. We will publish our analysis of where we expect there to be a need for legislative frameworks in whole or in part, for informal arrangements, and where we expect that no additional cross-UK mechanisms are required.
I also thank the noble Lords, Lord Luce, Lord Hoyle, Lord Kilclooney and the noble Earl, Lord Sandwich, for their remarks concerning Gibraltar. The Government are clear that Gibraltar is covered by our exit negotiations, and we have committed to fully involve it as we exit the EU. We will negotiate as one United Kingdom and will leave as one United Kingdom.
I turn to the Motion tabled by the noble Lord, Lord Adonis, for another referendum to be held. On this point, let me be completely clear. The result of the referendum held on
The British people can trust the Government to honour the referendum result. This does not mean that the process will be without scrutiny, and of course we will consult Parliament further. There will be a vote in both Houses on the final agreement reached with the EU. Then there will be a withdrawal agreement and implementation Bill that will give Parliament further time to debate and scrutinise the domestic legislation implementing the final agreement that we strike.
Any commitment to a second referendum would actively undermine our ongoing negotiating position. As the Secretary of State for Exiting the European Union noted:
“The consequence of putting a second referendum at the end of the negotiation is to invite every single member of the European Union who does not want us to leave to propose the worst possible deal, in the hope that we will change our mind”.—[Official Report, Commons, 24/1/17; col 176.]
This point was reinforced by many noble Lords, including the noble Lord, Lord Leigh of Hurley. We are not going to do that. We are seeking to get the best deal for the UK and we intend to negotiate under the best possible conditions. To do otherwise would be irresponsible in the extreme.
This debate has served to highlight the weight of the matter at hand and the importance of this House’s scrutiny. I look forward to the forthcoming Committee stage where we can enter into proper scrutiny and debate on the issues that have been raised over the past two days. I echo the words of noble Lords who have spoken of our constitutional duty to scrutinise this historic legislation. This place benefits from a wealth of experience and expertise, and I am confident that your Lordships will bring this to bear over the coming months.
Amidst some of the more colourful and entertaining rhetoric, metaphor and simile, a recurring theme has emerged in this debate: the Bill is necessary, the Bill is not perfect, and the Bill should be improved and strengthened but not obstructed. There was a visible and tangible consensus around these sentiments.
The people have spoken and this Government now have a duty to deliver a smooth exit. We owe this not only to those who voted to leave but to those who voted to remain. Regardless of how people voted, it is in the collective national interest to have a functioning statute book on the day we leave. This Bill delivers that by providing certainty and stability to businesses, consumers and citizens across the United Kingdom and I commend it to the House.
My Lords, I think it was someone other than Burke who said that on all great matters there was more to be said, but I do not think it necessarily needs to be said at 10.18 in the evening after 190 speakers and two days of debate.
These matters will be much debated over the coming months. I expect that the debate on the referendum and the case for the referendum will gather pace over that period, and I was very keen to put down a marker. We have not heard the last of these great national debates. We hope, like the right reverend Prelate the Bishop of Leeds, that they can be conducted in a civilised way. We are very mindful of the fact that the first thing Oliver Cromwell did when he took absolute power was to abolish the House of Lords as dangerous and useless. We intend to ensure that we are not dangerous and that we are very useful. On that note, I beg leave to withdraw my amendment.
Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 10.19 pm.