House of Lords
Tuesday 30 January 2018
Prayers—read by the Lord Bishop of Chelmsford.
European Union (Withdrawal) Bill
Second Reading (1st Day)
My Lords, it is an honour to open this debate on such an important Bill. It is almost a year since I opened the Second Reading debate on the European Union (Notification of Withdrawal) Bill. That Bill began the process of leaving the EU; this Bill ensures 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. It is vital to a smooth and orderly exit from the EU. The Bill is not about revisiting the arguments of the referendum. It is not about our future relationship with the EU, nor is it a vehicle for policy change. It is only part of the programme of legislation required to honour the referendum result.
The Bill begins by repealing the European Communities Act 1972, returning control of our laws to London, Edinburgh, Cardiff and Belfast. The Bill takes a snapshot of EU law that applies in the UK immediately before exit day and ensures that it will continue to apply in the UK afterwards. This will mean that, as far as practical, the same laws will apply the day after exit as the day before. Without this, a large part of our law would fall away when the ECA is repealed.
The Bill also ensures that questions about the meaning of retained EU law will be decided by UK courts in accordance with the case law of the European Court of Justice and the retained general principles of EU law as they stand immediately before exit. This approach maximises stability, ensuring that the meaning of the law does not change overnight. Only the Supreme Court and the High Court of Justiciary in Scotland will be able to depart from the European Court’s retained case law. Future decisions of that Court will not bind ours, but they will be able to have regard to those decisions if they consider it appropriate, in just the same way that they might refer to cases in other jurisdictions such as Australia or Canada.
My Lords, while the conversion of EU law into UK law is essential to ensure that we leave smoothly, simply preserving EU law is not enough. There will be many areas where the preserved law does not work as it should. So the Bill provides Ministers in the UK Government and the devolved Administrations with limited powers to make secondary legislation to address the problems that would otherwise arise when we leave.
These powers allow us to make appropriate changes to ensure our statute book works on day one and provide the UK Government and the devolved Administrations with the discretion that this unique situation calls for. This includes ensuring that Ministers can make the most appropriate choice where a range of corrections are available. This discretion is limited, however, as are the powers themselves. Failing to correct deficiencies in the law would have practical consequences ranging from public authorities submitting reports on water quality which the European Commission will not read, to causing disruption to the City by removing the supervision of credit rating agencies.
The Bill contains several other powers, including a power to implement international obligations and, following a government amendment in the other place, a power to alter exit day in the Bill if the UK and the EU agree to change the date the treaties cease to apply to the UK. Notably, Clause 9 of the Bill provides that the UK Government and devolved Administrations are able to implement the outcome of the negotiations on the withdrawal agreement with the EU. However, following a vote in the other place, the use of this power is now subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal.
The Government have always been clear that major changes will be given effect through primary legislation, but to correct all the EU law that has accrued in the 46 years of our membership is simply not practical to do via primary legislation. Many of these corrections will be largely technical. It is important that all these changes are scrutinised, but they are of exactly the type for which secondary legislation exists. Although I understand the concerns about so-called Henry VIII powers—I am sure we will be debating this at length in your Lordships’ House—it is not so unusual to take powers to amend primary legislation where that can be explained and justified. It is the content of the changes being made, not where in the statute book they sit, that matters.
The Government have been clear that a separate withdrawal agreement and implementation Bill will be used to implement the major elements of the withdrawal agreement between the UK and the EU, including an implementation period pending the negotiation of the precise terms. That Bill, along with several other pieces of legislation required for exit, will come before the House in due course.
Finally, I turn to the Bill’s devolution provisions. We are guided by two key principles. First, we want a functioning statute book on exit; secondly, we want there to be no new barriers to living in and doing business across the UK. So I reiterate that no power whatsoever that is currently exercised by the devolved Administrations will be removed by this Bill. We have a strong record on devolution through the Scotland Act 2016 and the Wales Act 2017, where more powers passed to the devolved Administrations; and we have repeatedly made clear our expectation that there will be a significant increase in the powers of the devolved Administrations as a result of leaving the EU.
We will shortly be publishing our initial framework analysis, which will show that in only a minority of policy areas where EU law intersects with devolved competence do we expect to require a UK-wide legislative framework. Noble Lords will be aware of the Government’s commitment to bring forward amendments to Clause 11, the main devolution provision of this Bill. We, the Scottish and Welsh Governments are part way through a process to shape those amendments and are making good progress. In the absence of an Executive and Ministers in Northern Ireland, discussions are taking place with the Northern Ireland Civil Service, but the Government’s priority remains restoring devolved institutions. This is a complex area that we need to get right, and I hope these amendments will put us on the best possible footing to achieve legislative consent, which remains our overarching objective.
This Bill has been the subject of extensive scrutiny in the other place, and the Government listened and responded to the issues and questions that were raised. Acknowledging concerns about the impact that withdrawal could have on equality law, the Government made amendments requiring Ministers to make a statement alongside statutory instruments made under the Bill setting out whether they amend, repeal or revoke any provision of equality law and, if they do, the effect that has. The amendment also requires Ministers to make a statement that they have, so far as required by equality legislation, had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010.
There was extensive debate on the Charter of Fundamental Rights. The Government’s position on this is clear: the charter reaffirms the rights found in EU law, which will be brought into UK law by the Bill. It is not, and never was, the source of those rights. The absence of the charter will not affect the substantive rights available in the UK, which is why the Government published an analysis of the charter setting out how each substantive right within it will be reflected in UK law after we leave. This analysis looks at how each right flows through retained EU law and how it is otherwise protected by existing domestic or international law after exit. The Government also brought forward amendments preserving some EU-derived rights of challenge for a period after exit.
The Government listened to concerns about scrutiny of secondary legislation, welcoming amendments proposed by the Commons Procedure Committee to establish a Commons committee to sift statutory instruments made under the key powers in this Bill. This House brings a raft of expertise and experience to the process of scrutinising our exit through the Constitution Committee, the EU Committees, the DPRRC and the JCSI, as well as our well-established system for scrutinising secondary legislation through the SLSC.
My intention is that we should build on those strong foundations and incorporate the changes embodied by the new Commons committee into the terms of reference of the SLSC to allow it to recommend, within 10 sitting days, that the House’s consideration of specific negative instruments related to this Bill should follow the affirmative procedure to bring it in line with the procedures established in the other place. I am conscious that, as well as altering its terms of reference, the SLSC would temporarily need additional resources, both in terms of expert advice and members, to allow it to do this work.
I have already had constructive initial discussions with the chairmen of the relevant committees, the usual channels and the House authorities. I will bring detailed proposals before the Procedure and Liaison Committees for consideration in March, and the House itself will then be invited to agree the proposed approach. The Government are fully prepared to bring forward any necessary amendments to this Bill.
Not for the first time, there has been much speculation about what might be expected from your Lordships’ House as we consider this Bill. Some suggest that this House will ignore the referendum or attempt to use the Bill to frustrate the Brexit process. I do not share those concerns. I am keenly aware of the collective sense of responsibility felt across this House to our important constitutional role and I am confident that noble Lords will take a constructive approach to our deliberations. I am also very confident that those deliberations will be thorough and very challenging, which is exactly as it should be. As I have said on other occasions, noble Lords bring a wealth of expertise to our proceedings, and it is precisely when we do this that we show this House at its best. I also know that noble Lords respect the primacy of the elected House and the decision of the British people. I hope that the approach taken in the other place demonstrates our willingness to listen carefully to constructive suggestions and to engage with noble Lords across the House as our country takes this big step.
My noble friends Lord Callanan, Lord Duncan, Lord Bourne and Lady Goldie, and my noble and learned friend Lord Keen, will join me in listening carefully to the debate, and my noble friend Lord Callanan will tomorrow endeavour to respond to as many noble Lords as possible—the first of many challenges he will face as he takes this Bill through your Lordships’ House. He will also be responding to the Motion in the name of the noble Lord, Lord Adonis.
Untangling ourselves from the EU legal order is complex, but we approach it in good faith. We have never said that we would get everything right on our own. We have always been clear we would listen to constructive suggestions for improvements. We have a duty before us to deliver on the will of the British people to leave the EU, and to do so in a way that provides certainty and stability. The Government’s goal is one we all share: ensuring that the UK has a functional statute book after we leave. I look forward to the many debates we will be having over the coming weeks, and I beg to move that this Bill be read a second time.
Amendment to the Motion
My Lords, I beg to move the amendment standing in my name. There are more speakers in this debate than the entire membership of the House of Lords for the first five centuries of its existence, and more than for any other debate in our 800-year history. That may not be an entirely comforting thought to the 193 noble Lords waiting to follow me, but it is symbolic. It is because of the magnitude of the issues at stake that I move this Motion. Just as the first say on Brexit was given to the people, so the final say should rest with the people once they see the terms proposed by the Government. Our constitutional role is to ensure, with the House of Commons, that the people have the final say.
I earnestly wish that the Leader of the House was moving this Motion or, failing that, my noble friend the Leader of the Opposition. However, neither the Leader of the House nor my noble friend—and I hold them both in high esteem—yet feel in a position to recommend such a course. I suspect the time will come when they do but, as a stop-gap, I feel bound to put this matter directly before your Lordships. I do not have time to get into the huge economic, legal and strategic issues raised by the Bill. Taking them at large, I simply invoke George Orwell and his brilliant essay, Politics and the English Language. Orwell wrote that, in times of crisis:
“Political language … is designed to make lies sound truthful … and to give an appearance of solidity to pure wind”.
So it is with Brexit. The Prime Minister promises a “deep and special partnership” with the European Union when, in fact, we are leaving the Union and undermining our deep and special partnership. We are told that “frictionless” trade will arise, amazingly, from the setting up of thousands of trade barriers where they do not currently exist. And, on the future of Ireland, where Parliament ought to tread with especial care, given the tragedies of recent decades, the Government say they intend “continued regulatory alignment”, when their stated policy elsewhere is to discontinue alignment and promote regulatory de-alignment.
The House needs to try to reconcile rhetoric and reality in all these areas. We look forward to working closely with the Minister, the noble Lord, Lord Callanan, in doing so. The noble Lord entertains decided opinions on your Lordships’ House. He told a Conservative Party gathering recently:
“The House of Lords is the epitome of the establishment, full of ex-foreign office luminaries and people who think that their view is much more important than that of common oiks … or the public as a whole”.
Now, speaking as an oik, I am in awe of the noble Lord and his determination to put us in our place but, not being in the least defensive, I say that the interests of the public as a whole do not lie in making Britain poorer. They do not lie in undermining the Good Friday agreement. They do not lie in diminishing trade and our people’s right to live and work across Europe. They do not lie in scapegoating Europe and foreigners for the social challenges we face. And they emphatically do not lie in weakening our solidarity with Germany, France and the other democracies of Europe in standing up to Vladimir Putin and others who now, and will in future, threaten our borders, our lives and our values. These are grave matters. We owe the House of Commons and the public our advice, and I believe that, in due course, we owe our fellow citizens the right to decide for themselves whether the Government’s Brexit terms should proceed.
Edmund Burke famously said:
“People will not look forward to posterity, who never look backward to their ancestors”.
The greatest Leader produced by this House in the last century is the noble Lord, Lord Carrington, who is soon to celebrate his 99th birthday. He is the last man alive to have served under Churchill. Under Margaret Thatcher he was an outstanding Foreign Secretary and Secretary-General of NATO. When I arrived here as an absurdly young 42 year-old he told me not to be nervous but to buy a decent suit. He said to the House 50 years ago on Britain’s second application to join the European Union,
“my Lords, we are part of Europe … our civilisation, our heritage … our manners … are all European … The vision of a United Europe, of France, Italy, Germany and Britain united in common purpose and effort, must surely be something to stir the imagination of even the most phlegmatic and placid … What splendid possibilities for the future! What a lost opportunity for us and for Europe if we are deprived of the opportunity of making our contributions!”.—[Official Report, 8/5/1967; col. 1216.]
That is so true. Let us not throw it all away.
My Lords, we are considering this legislation in unprecedented circumstances. Whatever one’s views on Brexit, this country has embarked on a process of fundamental constitutional change with deep and far-reaching consequences. Brexit is a process, not an event. It is not just a government process, but a parliamentary one that will involve at least 10 Acts of Parliament and around 1,000 statutory instruments, with numerous Statements, debates and committees examining the detail. Yet, at a time when the country really needs strong and stable government, we have instead consistent and persistent reports of a weak Prime Minister buffeted from one position to another as she tries to bring order to the warring factions in her Cabinet.
Before us we have a Bill that started as the great repeal Bill, then became just the repeal Bill, and is now the European Union (Withdrawal) Bill. None of them does what it says on the tin. A better title might have been the “EU (Transposition and Interpretation) Bill”. That is not just a quibble over semantics but a recognition of the importance and the technical nature of the legislation before us, and why we are so concerned that it should be fit for purpose.
Yesterday, our Constitution Committee published its report. We are grateful to it for doing so in time for today’s debate and the weeks of Committee ahead of us. I am sorry that the noble Baroness did not make more reference to the report.
While the principle of whether we leave the EU is, for many, ideological, the detail of the Bill is not. It is not about leaving or even just about how we leave the EU; it is also about how we maintain domestic legislation in the future. It will introduce a third category of legislation, in addition to primary and secondary, of retained law. That is the body of law that currently applies here in the UK through our membership of the EU, but has been introduced in different ways, and which the Government now seek to convert into domestic legislation. It is a relatively straightforward concept, but the scale and complexity is unprecedented.
Our Constitution Committee reports that while the Bill’s aims are valid, as drafted it is constitutionally unacceptable. However, amendments could address the deficiencies while maintaining the fundamental principles, particularly the sovereignty of Parliament. The Bill seeks to ensure that, following exit from the EU, there is legal continuity and certainty in our legislation. It seeks clarity in the application of laws on, for example, environmental protection, consumer protection, and rights at work.
Noble Lords are all grateful to the Constitution Committee for its pragmatic suggestions for amendments to achieve the objectives of the Bill. We all want to avoid this becoming a fiendishly complex process that weakens both parliamentary sovereignty and legal protections that our citizens rightly take as granted. During the passage of the Article 50 Bill, the Prime Minister constantly argued that she wanted a “clean Bill”, as if amendments somehow made legislation dirty and impure. Listening to the debates in the other place, and also the conciliatory comments from the noble Baroness the Leader and the noble Lord the Minister on TV at the weekend, I hope we have now moved on from such ridiculous notions and the accompanying sabre-rattling that we have seen before.
The Government have pledged to table amendments to address issues such as the devolution settlement and MPs across the Commons have said that this House can be helpful on unresolved issues. We have even seen rare harmony on the Conservative Benches as the former Attorney-General Dominic Grieve, the Father of the House of Commons, Ken Clarke, and the Brexiteer, Sir William Cash, all urged your Lordships’ House to deal with outstanding concerns, including the future role of judges in interpreting EU law. I welcome the compliment from Leader of the House of Commons, Andrea Leadsom, when she said last week that noble Lords,
“play a very important revising role, for which we are grateful and they have expertise that we in this House benefit from”.—[Official Report, Commons, 25/1/18; col. 414.]
We welcome that opportunity. However, before some get a bit carried away, I give a brief constitutional reminder that any amendments passed by this House provide a further opportunity for consideration by MPs, who have the final say. For those who criticise that role, I re-emphasise a point that I have made before. The process of Brexit is too important and complex to be left to those who have no doubt, because only doubt brings questioning, and it is only through questioning that we examine an issue enough to get the detail right.
Too often, the Government have put off tough decisions. For example, as we have heard in our questions, the financial services sector is crying out for the Government to publish a future partnership paper, to provide some certainty to allow for future planning. Yet none has been forthcoming and ministerial responses were complacent at best. With 19 months having passed since the referendum, it is unacceptable that the Government have not yet got a grip on the issues facing Northern Ireland, our Crown dependencies and our overseas territories.
We have not yet seen a credible way of solving the Northern Ireland border issue, given the Prime Minister’s flawed ideological position against a customs union. We still do not know the Government’s plans for the future of Gibraltar, and even yesterday the Minister side-stepped the question of a potential Spanish veto on its inclusion in the new UK-EU relationship. Even now, the Cabinet still has not had that essential discussion on our future trade relationship with the EU. These issues cannot just be popped into the “too difficult” box with the notion that, somehow, we just have to leave and it will be all right on the night. It is rare—this may never happen again—that I offer sympathy to the Chancellor of the Exchequer, Philip Hammond. But the public attacks on him from his own party, for stating a moderate view of how we manage future trade with the EU 27 countries, are absolutely shocking.
The time for slick soundbites to pacify extremists has long gone. Instead of vague superficial statements of a “global Britain”, “Brexit means Brexit” and now the appalling “buccaneering Brexit”, we have to deal with the reality and the nitty-gritty of the detail. That is the test for this Bill and the Government. I am grateful to the noble Baroness for her words about a new committee for dealing with the massive number of SIs and look forward to discussing that with her further. We called for such a committee and consider it essential. However, I have also raised with her and others the need to do a bit more. Given the timescale, and the volume of legislation, I have suggested that early drafts of SIs should be published for consultation, purely on accuracy, even before being brought to Parliament. There would be no delay, and it would provide an extra layer of inspection to ensure that the detail is correct.
I ought to say something about the amendment in the name of my noble friend Lord Adonis. A similar amendment was considered by your Lordships’ House when we debated the Article 50 Bill, and I suspect that we may have another at later stages of this Bill. Although a further referendum is not something I am attracted to at this stage, for a number of reasons, I really do not think that this is an appropriate amendment on Second Reading or that it fits into this Bill, given the nature of the issues before us. Should he put it to a vote tomorrow, I do not intend to vote.
This is not a Bill that would have been brought forward by a Labour Government, so I want to share the key, but not exhaustive, areas where we consider that changes are needed to ensure good governance and the maintenance of legislative protections for our citizens. The Bill must facilitate transitional arrangements on the same basic terms as now, including continuing our participation in both the single market and customs union, and the legal basis and regulatory alignment that underpins them. We should recognise that organisations as diverse as the CBI and the TUC are both urging the Government on this. The Bill needs to ensure that key workplace, consumer and environmental protections cannot be diminished without proper parliamentary scrutiny and process. Despite great interest in Tudor history, the use of Henry VIII powers is excessive. I hope the Government recognise that they must scale back on the scope of such unprecedented and sweeping delegated powers being granted to Ministers and safeguard parliamentary democracy. The legitimate concerns of the devolved Administrations regarding powers repatriated from Brussels must be addressed and we look forward to seeing the Government’s amendments in Committee.
We certainly would not have excluded the European Charter of Fundamental Rights. It is worth noting that the Brexit Secretary himself relied on this when, in 2015, he took the Prime Minister to court. The Government’s unnecessary ideological exception causes confusion and uncertainty and we look forward to hearing from my noble and learned friend Lord Goldsmith on this issue. Despite the welcome addition of Dominic Grieve’s amendment requiring an additional statute, the Bill must set out how Parliament will play a truly meaningful role in the process, including if we face the most catastrophic of possible outcomes, that of no deal. After my noble friend Lady Hayter speaks tomorrow evening, I sincerely hope the Minister will be able to confirm that he is not under orders to return a so-called “clean” Bill with no amendments other than his to the other place.
Like many others in your Lordships’ House, I have carried that ministerial folder with its pages and pages of briefing, the questions and answers, the lines to take and notes on elephant traps. But, all too often, the first line of advice on any amendment says, in capital letters and bold print at the top of the page: “RESIST”. We have all been there. I have confidence that the Minister will want to listen to the House and to different points of view. I urge him to see this as a real opportunity for the Government to avail themselves—as Andrea Leadsom said—of the genuine expertise that is on offer.
I conclude with a final appeal to the Government for some certainty: certainty for individuals whose everyday lives interact with the hard-won EU rights and protections that we fought for, whether when at work, buying goods or enjoying this country’s open spaces; certainty for businesses that fear, without confirmation of a transitional period on current terms, falling off a regulatory cliff edge in just over a year; and certainty for Parliament as to its role in this process and for the judges who will have to interpret the law that this Bill enshrines.
My Lords, it is now a year since your Lordships’ House began its debate on the Article 50 Bill and 10 months since the article itself was triggered. It is generally agreed that both the withdrawal agreement and the agreement on our future relations with the EU have to be concluded before the end of this year. So we are approximately half way through the entire period available for our exit negotiations. What has been achieved so far? The answer: virtually nothing.
The Government have formally agreed on the future rights of EU citizens living in the UK. But this was something that, from day one, they said they were going to do. They have agreed a divorce Bill, but, again, the Prime Minister had long made it clear that the Government were going to do just that—even if some members of her Cabinet did not agree. On the status of Northern Ireland, the Government have agreed a form of words that, far from settling the matter, is interpreted in a completely different way in Ireland from the gloss put on it here in London, as I discovered in a range of discussions I had in Dublin last week. On our future relationship with the EU, beyond bland and meaningless platitudes, we have nothing. In December, we were told that the Cabinet would agree on our future trading relationship with the EU during January. Well, January has come and almost gone, and there is still no sign of such a decision or anything approaching one. The Prime Minister is so cowed by a fractious, disunited Cabinet that she dare not even make a speech on the subject. Many in your Lordships’ House have longer experience of government than I do. However, I doubt whether any noble Lords have seen a Prime Minister or a Government in such a state of paralysis.
In the real world, our growth rate has fallen from the highest in the G7 to the lowest; the head of the OBR describes the economy as “weak and stable”; and the Government’s own assessments of the impact of Brexit on the economy are uniformly negative.
It is against this background that we begin our consideration of the withdrawal Bill. Of course, it was never intended to be a withdrawal Bill: it was supposed to be the great repeal Bill. That was until the clerks in the Commons objected to the use of the word “great”. They could equally have objected to the word “repeal”, because this is not a repeal Bill: it is a transfer Bill, taking the whole bulk of existing EU legislation and turning it into domestic legislation. While it is very easy to dismiss the kerfuffle about the Bill’s title with a smile, it is revealing of the Government’s overall approach to the Brexit process. That approach can be characterised as a combination of arrogance and incompetence, which is now threatening the future of our country, and the ticking of the clock in the background is getting louder every day. The withdrawal Bill exhibits the arrogance and incompetence of the Government in equal measure. Because of this, the Government have turned the Bill, which although very important is essentially a technical measure transferring legislative powers, into one of constitutional and political crisis.
Before turning to the Bill’s deficiencies, I should make it clear that we on these Benches have no intention of derailing it or unnecessarily spinning out debate. As with any other legislation, we will seek to scrutinise it carefully and, where we feel it necessary, seek to amend it. We have been fortified in this approach by the comments made from around the House during Report stage in the Commons. Not everybody went quite as far as the right honourable Kenneth Clarke, who said that:
“I hope and believe that the other place will make an enormous number of changes to this Bill … I hope the House of Lords will throw back some of the bizarre extension of the Henry VIII principle in this Bill”.—[Official Report, Commons, 16/1/17; col. 760.]
But MPs from all Benches, including some leading supporters of Brexit, accepted that the House of Lords had the right and the duty to make changes. I hope that we will not disappoint them.
The Bill is extremely technical and does not make for easy reading, but among the technicalities I see four broad areas where changes are warranted. First, on substance, the Bill does more than its ostensible remit in seeking to make substantive change to legislation and allowing such change to be made as legislation is translated into UK law. The most obvious example of this is the disapplication of the European Charter of Fundamental Rights, but it extends to allowing any change to any EU legislation which the Government think is merely “appropriate”—in other words, virtually anything at all.
Secondly, the Bill gives Ministers the power to make an extraordinarily wide range of changes by statutory instrument and to undermine the role of the devolved Administrations. This unprecedented extension of Executive powers, including Henry VIII powers, is not limited to this Bill but characterises all the Government’s Brexit legislation to date. What the Government seek to do, across the piece—we saw this in the Sanctions and Anti-Money Laundering Bill—is to bypass all normal parliamentary rules and scrutiny. This is not simply to make technical changes, but in areas where primary legislation is the accepted norm, whether creating new public bodies, introducing new criminal charges, or imposing new taxes, fees and charges.
Some 1,000 statutory instruments are apparently required to implement the Bill, yet it is unclear how such a deluge is to be managed and how we ensure that adequate scrutiny is achieved. The Commons has indeed inserted a sifting mechanism, but this is a very weak provision and obviously does not apply here. I am grateful for the recognition from the noble Baroness the Leader of the House that we need to have changes in this respect. I look forward to seeing them.
As for the devolved Administrations, the Government have repeatedly asserted, as we have heard, that they would bring forward proposals to rectify what is currently seen, including by Conservative Members of the Scottish Parliament, as an unacceptable power grab. We still await those government amendments. It is hardly surprising that the Bill has been described by the constitutional affairs committee of your Lordships’ House as,
“fundamentally flawed … in multiple ways”,
and “constitutionally unacceptable”.
Thirdly, we need to reduce the uncertainty and lack of clarity in the Bill about the status of the transposed law. In this respect, the extent to which UK courts should take account of evolving EU law needs to be made much clearer.
The final area of inadequacy relates to what happens if a Brexit deal is reached. The Government have consistently attempted to constrain the role of Parliament at that point. The Bill as it stands fails to give Parliament a meaningful role if no deal is reached and unnecessarily states that the exit date will be 29 March next year come what may—unless a Minister decides otherwise.
The Bill and the Government still also refuse to countenance the idea that, having fired the starting gun for the Brexit process, the people as a whole should decide whether the Government have produced a deal that they find acceptable. Opponents of a referendum on any Brexit deal have argued that such a vote would frustrate the will of the people. Yet, as of today, polls show that the people wish to have such a referendum and that, if it happens, they are likely to vote to remain within the EU. Those of us who argue that the people should decide this issue now represent the views of the majority. The onus is therefore on those who oppose such a vote to explain on what democratic basis they now do so.
I am sure there will be other important technical issues in respect of which your Lordships will wish to improve the Bill, and that amendments will seek to help the Government define exactly what kind of relationship they wish to have with the EU, were Brexit to happen. But there is one overriding fear that I suggest noble Lords should have in their minds as we debate the Bill. The Government have no substantive policy on what Brexit will mean in practice. We are hurtling towards 29 March next year with no hand on the steering wheel. The Government appear to hope to get to the other side of Brexit by muddling through until the last minute, then leaving many of the critical issues covered by a thick layer of ambiguity in any end-of-year agreement. They then hope to ram this pig-in-a-poke deal through Parliament and the legislative process via ministerial fiat. This is to sell Parliament and the people short. It will not do. We must, and I believe we will, prevent it.
My Lords, I think that we need this Bill. It is in everyone’s interest that the gap in our law book when we leave the EU should be filled. As the noble Baroness the Leader of the House says, we need a seamless transfer from one system to another when that event occurs, so I think that the Bill deserves to have a Second Reading and must be allowed to pass. Nothing that I am about to say should be taken as being in conflict with those basic points.
However, the Bill comes to this House in a sorry state. It was drafted many months ago when we knew much less about how the exit was likely to be managed than we do now. It all seemed so simple then; you only have to look at Clause 9 to appreciate that point. It is designed to give power to Ministers to implement the withdrawal agreement. It also provides that no regulations may be made under that section after exit day. The idea that everything that needs to be done could be achieved on or before exit day informs the entire Bill, but we now know that there will have to be an implementation or transitional period—call it what you will—after that date. So that is an absurd provision in the light of what we now know. Moreover, the Government have failed to bring forward the amendments that are so obviously needed to meet this changed situation and deal with other criticisms that received cross-party support in the other place.
Time is short so I will concentrate on just one of the important issues: devolution. This is of concern to all the devolved Administrations, but I hope that the others will forgive me if I speak only about the devolution settlement that is set out in the Scotland Act 1998. I spent many hours late into the night debating that Bill here—we often sat well after midnight in those happy days. I worked with the Act as a judge on many occasions from its enactment until my retirement and learned to respect the way in which it had been drafted. That is why I am astonished by this Bill’s failure to respect that settlement in its formulation of the regulation-making powers given to Ministers.
There is of course a political angle to this issue, too. The Scottish Ministers have declared that they will not put a legislative consent Motion before the Scottish Parliament unless their objections to this are met. The bonds that hold the UK together would be stretched almost to breaking point if the Bill were to proceed to enactment without their consent. As a mere lawyer, I am in full sympathy with their objection.
Ministers may think that this is merely an enabling Bill, but it is not. It is about our constitution, too. The situation that it provides for as we leave the EU is entirely new. It is one that we have not had to face since the Scotland Act was enacted. The constitutional arrangements that were settled by the Scotland Act 1998 have to be changed but, as the Bill stands, they are being rewritten in a way that is naive and very damaging. Others will criticise some of the clauses containing regulation-making powers as amounting to Henry VIII clauses. As far as I know, Henry VIII never got to Scotland, but Oliver Cromwell did and he and the forces under his command did quite a lot of damage while he was there. I think that these clauses have a touch of Oliver Cromwell about them.
This issue goes far beyond the much-criticised Clause 11, which is about retaining EU restrictions in devolved legislation when we leave the EU. You can find these regulation-making powers in Clauses 7, 8 and 9 and throughout the entirety of Schedule 2. They are far-reaching and we must assume that they are there because it is intended that they should be used. As the wording stands, they could all be exercised to their fullest extent in all areas that are devolved to Scotland without any consultation whatever with the Scottish Ministers.
The legislative competence of the Scottish Parliament after exit day has been called into question, too. That would not be so bad if we could be certain that these provisions would have a very short life because everything that needed to be done could be achieved on or before exit day. As matters stand, though, we can expect these powers to be exercised for many months after that date. Those in Clause 9 are time-limited, absurd though that limit may now seem to be, but the remainder are not.
Ministers may say that that is not their intention; I listened with great care to the words from the noble Baroness about devolution. If so, I urge them to make their position clear in the Bill. Only if they are willing to do that are they likely to win the confidence of the Scottish Ministers in the area where a real opportunity lies for a mature and intense discussion, as we seek to define how the system of devolution can best operate in a new and vigorous UK single market after exit day. That is what the discussions about a redesigned Clause 11 should really be about. It is an area where there ought to be a real opportunity for an agreed way forward.
However, there is much more to the issue than Clause 11, as I have tried to emphasise. It is hard to see those discussions getting anywhere so long as the basic architecture of the Bill is so misguided and ill-informed. I will be bringing forward amendments that seek to resolve that problem and I hope that they will be supported across the House. If others seek to do the same thing, I will support them, too.
My Lords, many speakers will attend to the technical and legal details of the Bill and they will be better equipped to do so than I am. I therefore want to use my time to pay attention to a question that lies behind the nature of the Bill and the choices that we are required to make in scrutinising and attempting to improve it. This question applies to all sides of the argument, whether we think that leaving the European Union is an unmitigated disaster or the best thing since Winston Churchill mobilised the English language and sent it into battle.
The question goes beyond economics and trade deals. It haunts constitutional matters and refuses to be submerged by ideologically driven assertions that promise what cannot be promised and ridicule arguments that are inconvenient. Brexit has unleashed the normalisation of lies and rendered too easily acceptable the demonising of people who, with integrity and intelligence, venture to hold a contrary view. We are in danger of securing an economic platform at the expense of a culture of respect and intelligent democratic argument.
The question that I allude to is simply this: at the end of this process, what sort of Britain, or indeed Europe, do we want to inhabit? I accept that this is almost an existential question, even a challenge, but, as we debate the legislative detail, we must not lose sight of the point of it all. Existential questions cannot be determined by statute, but the shape of statute speaks loudly of what we think our society should be for, and for whom. This is why debate about the discretionary powers of Ministers to make laws with equivalent force to primary legislation is of such importance. When such powers are so wide that this House is asked to leave to the judgment of Ministers the meaning of such terms as “appropriate”, it is only right to ask for definition. After all, history is riddled with the unintended consequences of what might be termed “enabling legislation”.
Let us be honest, though: Brexit is technically so demanding and complex that, if I were Prime Minister, I would want the authority to deal flexibly with anomalies and technical weaknesses as quickly and smoothly as possible as the consequences of Brexit became known. I understand the technical element of this, but the Bill goes beyond legislative technicalities and impacts strongly on constitutional arrangements and the balance of power. Surely, if “taking back control” by Parliament is to mean anything, it must mean refraining from bypassing the essential scrutiny that Parliament is privileged and required to provide. Hard parliamentary scrutiny might be inconvenient at times, but the long-term consequences of granting Ministers unprecedented powers, as set out in the Bill, must be considered, as they will shape the deeper culture of our state and change our assumptions about democracy. This suggests that, although any sane person will recognise the Government’s need to have significant powers to ensure that process and legal certainty post Brexit are as smooth as possible, there must be limits to the use of such powers. As a colleague of mine put it succinctly and colourfully, we must avoid Brexit Britain turning into Tudor Britain. Clearly there is a balance to be struck, but I do not believe that the Bill as currently formulated achieves that balance, nor does it demonstrate that the genuine fears of constitutional experts and lawyers have been properly heard.
I have two concerns about the culture in which this debate is being conducted in this country—seen with incredulity by those looking at us from beyond these islands. First, almost every paper, every debate and every statement about Brexit is clothed in purely economic terms. It is almost as if the economy were everything and economics the only good. Yet, the economy—one might add the word “trade”—is not an end in itself, but rather a means to an end, which is human flourishing and the common good. The economy—trade—exists for the building of society, but society is more than the economy. It is simply not enough for us uncritically to assume that a market society, as opposed to a social market, is a given or an ultimate good. Culture is more than money and things.
Secondly, the referendum tore off the veneer of civilised discourse in this country and unleashed—perhaps gave permission for—an undisguised language of suspicion, denigration, hatred and vilification. To be a leaver is to be narrow-mindedly stupid; to be a remainer is to be a traitor. Our media—and not just the ill-disciplined bear pit of social media—have not helped in challenging this appalling rhetoric or the easy acceptance of such destructive language.
Beneath this lurks an uncomfortable charge articulated in a recent Carnegie report on tensions between Russia and the West by the deputy director of the Russian Institute for Political and Military Analysis in Moscow: if Russians would still die for the motherland, what would we die for in the West? As Martin Luther King suggested, if we do not know what we would die for, we have no idea what we would live for. Once we have done Brexit, then what? What was it for? Who do we think we are?
If this debate on Britain’s future is to have any lasting value and not just undermine long-term relationships of respect and trust—the civic public discourse—then attention must be paid to the corruption of this public discourse. Politicians could begin by moderating their language and engaging in intelligent, informed and respectful argument that chooses to eschew personalised or generalised vindictiveness or violence. We must not allow our body politic to be defined by Brexit; rather, we will need to transcend the divisions currently being forced by the terms of discussion. Peers have an opportunity to model good ways of disagreeing well, which might encourage others to see that there is an alternative to a political culture that appears sometimes to have been reduced to an unbridled tribalism where the first casualty is too often the dignity of the other. Please let us not lose sight of the deeper question that lies behind the technical detail of this Bill.
My Lords, this is a technical Bill with a simple purpose: to provide as much legislative certainty and predictability as possible as we leave the EU. In some ways, it is quite a boring Bill, but that does not mean that it is not important. To translate the whole body of European law into British law will be a massive task. To provide the certainty, the Government must be able to move fast at a time when, by definition, not everything is yet clear. But we have to balance that need for speed with making sure that the Government face proper scrutiny. No one knows better than this House the need for proper scrutiny—we are experts at being boring—and no one knows better than us the state in which legislation often comes to us from the other place.
I gently suggest to the Government that they look with an open mind at constructive suggestions as to how the process of scrutiny could be improved. This is an area at which this House excels and where we can burnish our reputation. We will damage our reputation if we try to use this Bill to play politics, slow the process down or seek to undo commitments given in manifestos or in parliamentary votes, so I was encouraged by the remarks made by the Opposition Front Bench that it sees the Bill in the same light.
I agree with the Government when they say that the Bill should not be used to increase uncertainty, but they themselves need to reduce uncertainty by taking some decisions and being honest about the consequences of them. Just as with any other change in politics, there will be winners and losers from Brexit. There is no point denying that basic truth. The Government need to concentrate on working out how to mitigate those losses and to accelerate the wins.
Business leaders increasingly say to me that it is the political paralysis caused by the process of Brexit that depresses them more than Brexit itself. They want the transition agreed with the minimum of argument and then to have clarity as to the future direction of travel. Instead of talking endlessly about Brexit, they want to know about life after Brexit. Here, the Government will have to choose. There is a reason why we have the saying that he is trying to have his cake and eat it; we know that it is physically impossible both to have your cake and eat it. So, to state what should be obvious by now, we are simply not going to be able to be both in the single market and free to make our own rules where we want to.
Although there is flexibility in the European system when it wants to be flexible, we will not be able to converge where it suits us to have continuity and to diverge where it suits us to be more competitive. During the referendum, one of the reasons why I voted remain was that I thought that it would make no sense at all for a service-based economy such as ours to be bound by rules over which we had no influence. Now that we have voted to leave, that same logic holds—actually, the logic is even stronger, because the act of Brexit is itself changing the dynamic in Europe. Contrary to one of the referendum myths, we had a lot of influence in the EU: pro-free trade, pro-markets, pro-business, pro-proportionate legislation. But that voice has fallen silent. As a result, Europe is already moving in directions that we have traditionally resisted, whether that is a financial transaction tax, more screening of overseas investment or more centralisation of supervision of financial services. For an economy that is as dependent as ours on services, how could we in all seriousness subcontract all rulemaking to someone else?
If, as I believe, we will have to choose, we must surely place a greater priority on being able to shape our own future than on preserving the status quo, particularly when technological innovation is itself going to change the status quo, whatever we decide on Brexit. We need speed, honesty and certainty. The Bill can help us on that path and it is in that spirit that I hope we can approach it in this House.
My Lords, I do not wish to speak on the pros and cons of Brexit. I will say a few words about the concerns raised by the Constitution Committee, which I now have the privilege of chairing, because, whatever our personal views on Brexit, we must as a House fulfil our constitutional responsibilities to try to make this legislation fit for purpose, even if we disagree with the purpose.
I remind the House that following the result of the referendum the Constitution Committee, then chaired by the noble Lord, Lord Lang, took the unusual step of publishing a report that anticipated some of the problems that would arise in legislating in this area. The committee realised at that very early stage that there would be significant challenges for the Government and Parliament as a whole.
Following the publication of the European Union (Withdrawal) Bill, the committee produced an interim report in September last year looking at how far the Government had taken on board the concerns that had been raised pre-publication of the Bill. The committee was disappointed, to put it mildly, that the Government had not really listened to our earlier concerns. Indeed, had they done so, many of the problems that this legislation presents would not now be so difficult. Following that interim report, the Constitution Committee took evidence on the detailed and specific provisions in the Bill. Yesterday we published a report that goes through the Bill in great detail and highlights the significant—indeed, fundamental—flaws of a constitutional nature that we believe still exist and should be of concern to the whole House.
Our major and most significant concerns are threefold. First, there is the issue of legal certainty. We conclude that the Bill risks fundamentally undermining legal certainty in this country, a view that is shared by some of the most senior judicial experts. That is a very serious matter. Secondly, we are concerned about Parliament’s ability to fulfil our constitutional responsibilities in holding the Government to account and scrutinising all the legislative changes that are being proposed, especially when Ministers are seeking such broad delegated powers. Thirdly, we have concerns about the potential risk to the current devolution settlements that could result from the Bill, as the noble and learned Lord, Lord Hope, has outlined. Amendments in all these areas will be key to making the legislation fit for purpose, which is what the noble Baroness the Leader of the House hopes we will do.
I believe that changes and amendments are essential. The committee did not just criticise the Government’s Bill; we made specific recommendations as to how these problems could be addressed. We have sought to be constructive and to propose changes that will help to make the Bill fit for purpose and that do not undermine the Government’s intentions.
Our first proposal is to give greater clarity and certainty to the retained EU law that the Bill would create. We believe that we should give all relevant existing EU law the status of primary legislation, deemed to be enacted on exit day. This would mean that such laws would have a clear legal status in relation to other domestic law. Moreover, and importantly, it could then be amended only by Parliament. Such a move would be consistent with the doctrine of parliamentary sovereignty.
On our second concern, about the additional powers going to Ministers and the scrutiny of delegated legislation, we took evidence from the Government. I heard what the noble Baroness the Leader of the House said today, but we need more than just the committee structure that she was outlining. We have made some suggestions that are significant and would help. For example, we have suggested that Ministers must give good reasons for making changes by regulation, not simply judge for themselves that it is “appropriate” to make such changes. We recently had amendments to the Sanctions and Anti-Money Laundering Bill of that nature and I hope the Government will consider similar changes here. We also propose something constructive when we say that Ministers should have to personally certify whether new SIs contain any policy changes, so that we have maximum clarity on what we are considering.
I must say a word about the problems surrounding the Government’s relationship with the devolved assemblies. The noble Baroness the Leader said that progress was being made, but we were told that, when the Bill was in another place, amendments to Clause 11 were promised but not delivered. As the noble and learned Lord, Lord Hope, said, there are significant potential consequences. If the transfer of powers and competences from the EU to the appropriate Administrations does not take place smoothly, we could have a constitutional crisis. It is important that the Government realise that they cannot simply impose a settlement. The devolved authorities must be involved as partners in this.
I have focused my remarks on the need to make this Bill a piece of legislation that can function properly, because I believe, and my committee believes, that it is our constitutional responsibility to make all legislation fit for purpose. However, significant amendments are required if we are to achieve that.
My Lords, I want to make three points: on the degree of freedom the Government are asking for to make secondary legislation; on the absence of guarantees for consultation with English regions and local authorities; and about the uncertain links between withdrawal from the EU treaties and Britain’s future contribution to Europe’s political and security order.
The Leader of the House has just told us that the Bill offers certainty. It does not. The Government are asking both Houses to take an enormous amount on trust. It would be easier to trust the Government if they could provide some indication of what future relationship with the European Union they want to negotiate. Scrutinising this Bill against a background of open disagreements among Ministers and Conservative MPs about future alignment or the divergence of regulation will be peculiarly difficult. If half the Conservative Party does not trust the Cabinet on this, and the unelected journalists of the Daily Mail and the Telegraph are actively mistrustful, how can we grant the Government such wide ministerial discretion?
The cloudy phrases that the Prime Minister trots out to obscure where the Government intend to take us, on a relationship that is fundamental to Britain’s future economy, security and place in the world, make the confusion worse. What is a “bespoke” agreement? A friend has told me that a bespoke suit is one that costs a great deal more than one off the peg, but offers only a few tweaks in the way it is put together. The phrase a “deep and special” agreement is deliberately ambiguous. No Minister has spelled out the subtle differences between a “transitional” agreement and an “implementation” agreement, or the distinction between “a” customs union and “the” customs union. This House is justified, therefore, in narrowing the degree of ministerial discretion that the Bill permits. We have been given little idea of what Ministers might consider “appropriate”, as the Bill says, in exercising the executive powers it gives them. We should therefore amend that term wherever it appears to “necessary”, to narrow the degree of freedom they are given. I hope that this will command support across the House.
There will be much debate in Committee about the implications of Brexit for the devolution settlement with Scotland, Wales and Northern Ireland, and whether repatriation will tip the existing balance of competences in favour of Westminster. Those of us who live in the English regions—above all those of us who live in the north—will want to see how far we can insert amendments to provide for effective consultation also with English local authorities. Yorkshire and the north-east have a combined population larger than Scotland, have much greater economic interdependence with the European continent than Wales or Northern Ireland, and have benefited from EU funding while Westminster has starved the north of funds. We will work with the Local Government Association to insert a requirement for consultation in this Bill, unless the Government come forward with clear proposals of their own—and I gather that that is now under discussion.
The Bill’s focus is primarily on repatriating powers under the Treaty on the Functioning of the European Union. I will seek also to probe the Government on the implications of withdrawing from the more intergovernmental Treaty on European Union, which is concerned with fundamental rights, democratic principles, common foreign policy, and security and defence policy. Do the Government intend to opt out of any concern about the future European order after we leave? Or do at least some Ministers intend that continued co-operation in these crucial fields will somehow be woven into the “deep and special partnership” that the Government promise us they will eventually define? It would be a complete betrayal of a crucial theme in Margaret Thatcher’s Bruges speech to opt out of sharing the responsibility for maintaining and strengthening a democratic order across the whole of Europe. If I may remind the House, she said:
“Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community … The European Community is a practical means by which Europe can ensure the future prosperity and security of its people in a world in which there are many other powerful nations and groups of nations”.
This Bill shows that those who claim Mrs Thatcher’s legacy have betrayed it.
However, the Government are now reported to be reconsidering the complete withdrawal from foreign and defence collaboration. There are even whispers about continued membership of the European Defence Agency, covered by Article 45 of the Treaty on European Union. I and others will be probing the Government on what form of continued association they intend to negotiate on the areas covered by Articles 23 to 46 of the TEU, and how they intend to seek parliamentary approval for their engagement in these fields.
Another empty phrase, “We are leaving the European Union but we are not leaving Europe”, is intended to blur the question of how we will associate with the EU’s established frameworks, which successive British Governments, from the noble Lord, Lord Carrington, onwards, helped to build. The Foreign Secretary has said nothing about this central issue so far as I am aware, but we are entitled to an answer as the Bill goes through.
My Lords, I support most of this Bill but worry that it may never be used if those who want to reverse the decision of our referendum succeed. I fear they may do so if the Government do not radically change their negotiating strategy in Brussels, so I have some advice for them in that regard.
The Brexit saga brings home to us the chasm between our politicians and their bureaucrats in one camp and our business community in another. Each camp tends to look down on the other, with the politicians and bureaucrats regarding our businessmen as rather grubby people, driven by the profit motive and often open to shady deals in its pursuit. In this, they overlook the fact that their own salaries and way of life, the NHS and other services of the state are supported by the taxes paid by our business community. That community, in turn, tends to despise our political class as not living in the real world and for not being exposed to redundancy or ruin if they fail. “They’ve never had to do a deal in their lives, so no wonder they’re making such an appalling mess of Brexit”, is a view I hear nowadays from every leading businessman to whom I speak.
To do a deal, you have to know what you and the other side want out of it. You have to know their and your strengths and weaknesses, what you are prepared to concede to get what you want, and at what point you really will get up and leave the table. I fear the Government are failing on all these fronts. Their worst mistake is underestimating the strength of our hand in Brexit’s four main issues: mutual residence, trade, security and cash—which should be taken in that order, not the other way round. On mutual residence, there are some 4 million EU people living here against 1.2 million of us living there. On trade, if we end up on WTO terms, EU exporters will pay us tariffs of some £13 billion per annum while ours will pay them only some £5 billion. On security, we are part of the “Five Eyes”. On cash, we give them £10 billion in net cash every year, or the annual salary of 1,000 nurses every single day.
However, the Government have allowed the Eurocrats to take these issues back to front, and they appear to have done so thanks to a basic misunderstanding of the meaning and force of Article 50 in international law. I am no expert in international law but I draw noble Lords’ attention to the opinion of someone who is: Professor Ingrid Detter de Frankopan, who holds a doctorate in European law and two others. She wrote an article in Money Week on 22 November 2016 entitled, “Don’t trigger Article 50—just leave”. I will put copies in your Lordships’ Library and can send a copy electronically to any noble Lord who feels he should read it. The core of Professor de Frankopan’s advice is that we did not and still do not need to go further than paragraph 1 of Article 50, which says:
“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.
She points out that the UK does not have a written constitution but that a referendum of the people and votes in Parliament nicely fill the gap.
So the Government should now change direction. They should sit the Eurocrats down and tell them we have done our best to make paragraphs 2 to 5 of Article 50 work but they have abused our trust, and we see no future in going on like this.
So we are, unilaterally, taking back our law, borders, fisheries, agriculture and so on, but we will also be generous. We will give them wide mutual residence; we will allow them to continue in free trade with us; we will go on helping them with security; and then we will decide how much cash we will give them, which may be nothing after 29 March next year if they do not behave themselves and fall in with the above—or, if they do, it may be quite a lot. The Eurocrats will do almost anything for our cash.
Our biggest negotiating difficulty is that the Eurocrats’ main priority is to keep their failing project of European integration going. If we make a success of Brexit, that becomes even more difficult. But we have to take that head on; it is not our problem if the Eurocrats lose their plush but pointless lifestyles, their fraudulent budgets and their silly mirage that the EU has brought peace to Europe. They could not care less about the real people of Europe, as witnessed by the misery caused by their euro. We should make more of an effort to talk directly to those real people: the French wine growers, the German car manufacturers and the others who will pay us those tariffs if we do not continue in free trade together. We should divide the real people—who all have votes, incidentally—from the doomed Eurocrats.
I end by pointing out how dishonest is the position of those who now want Parliament to have a say in Brexit’s outcome but who, in truth, want to reverse the referendum’s result. May I remind noble Lords that they have stood affectionately by while some 20,000 EU laws have been imposed on this country since 1973, without the Commons or your Lordships’ House being able to do anything about them? Why do they now care if our elected Government repeal or amend some in the national interest?
I remind noble Lords that our democracy has also been betrayed in the Council of Ministers, where our Government have been outvoted on every single one of the 77 measures that we have opposed in the last 20 years.
I finally remind noble Lords, yet again, that the whole project of European integration was designed to deprive the people of their democracy. As Jean Monnet said in 1956, “Europe’s nations should be guided towards a super-state without their people understanding what is happening. This can be accomplished by successive steps, each disguised as having an economic purpose, but which will irreversibly lead to federation”.
The problem for the noble Lord, Lord Adonis, and his supporters is that the British people are not fools—they have seen through it.
My Lords, I am not quite sure what I have done to deserve the honour of being squeezed between the noble Lords, Lord Pearson and Lord Mandelson. I will separate them temporally; I do not suppose that I will need to separate them ideologically. They will leave a vast ideological lowland across which I can wander with great freedom—oh happy days.
In 2015, this House approved the European Union Referendum Bill. In 2016, that referendum was held and its result was decisive. The people spoke. They spoke again in the 2017 election, when the vast majority of votes were given to parties that supported the outcome. Then, in 2018, bringing us bang up to date, the elected House of Commons—the people’s House—supported this withdrawal Bill. We cannot say that we have not been warned.
Yet now, from some quarters, we hear all sorts of reasons why we must duck and dive and dilly-dally, all dressed up in the language of constitutional propriety. There are some who let their honest ambitions slip and openly talk, outside the House, of sabotaging Brexit. That is sad and unwise. They will not sabotage Brexit, but they might well sabotage the credibility of this House, which is not well loved. Our support among MPs is falling and there are many in the press who are waiting with sharpened knives, particularly after the Data Protection Bill, to slit our veins. We ourselves agonise over reform, about reducing our numbers and increasing our effectiveness, which is, I suppose, tacit acceptance that the House of Lords is not entirely fit for purpose. If we were to make a constitutional Horlicks of this Bill, we will have made that point inescapable. We are unfit for purpose and the tumbrils will not be far behind.
I know that I tend to dramatise everything—it is what cheap novelists do—but since the noble Lord, Lord Adonis, began with a little bit of history, let me indulge in a bit, too. Some 100 years ago, this House came to the brink of disaster through naked self-indulgence. We turned our backs on Lloyd George’s “people’s Budget”. We cut ourselves off from the people. The House of Lords was accused then of being,
“one-sided … unpurged, unrepresentative, irresponsible”—
the words, incidentally, of that notorious troublemaker Winston Churchill. The Liberal Government of the time were left with no choice but to threaten to create hundreds of new Peers to get their legitimate business through, even to plan for the complete abolition of this place. Does any of that sound familiar? “So what?” one might say. The rights of this unelected House are clear, but so are its responsibilities. We have a duty to advise, enhance and improve where we can, but not to obstruct or overturn, least of all to sabotage.
Yet I am an optimist. Cool heads and sweet reason will, I am sure, see us through. The Government have made it clear that they will listen—they have already moved on several fronts—and the Labour Front Bench has offered wise and sensible words as to the limits of its ambitions. Undoubtedly the Bill needs scrutiny and improvement. The noble and learned Lord, Lord Hope of Craighead, gave a fascinating insight into some of those expectations. I hope that this will be our finest hour, or our finest week, or our finest months, as it will probably turn out to be. Am I being naive in thinking that there are those who talk of their parliamentary duty and the need for delay when in fact they intend to destroy? “It is too soon, too quick, too complicated”, they cry, “let us talk some more”. Like Penelope at her loom, they protest their innocence, while in the dark hours they do their best to unstitch it all and hope that Jean-Claude Juncker, or maybe even Tony Blair, will suddenly appear on the horizon and turn back the clock. Never let failure piled upon failure stand in the way of personal ambition.
The ambition of this Bill is modest—simply to ensure continuity from day one. Very little will change. Yet, I grant, in these modest changes, everything will change. We will bring government back closer to the people. We will once again make our own laws and be subject to our own courts. That is what the people have given their voice to, time and again, and that is what we must enable, through this Bill, and in a timely manner. This is one of those special parliamentary moments; it might even be called historic. A hundred years ago it was the people’s Budget. Today it is the people’s Brexit and I profoundly welcome it.
My Lords, the noble Lord squeezed in very enjoyably. Following the referendum in 2016, as much as I regretted the result, I took the view that it must be upheld. I believed that the Government should deliver Britain’s exit from the European Union and that the duty of Parliament, including of this House, was to facilitate that. I no longer believe that to be axiomatic. The Government cannot behave as if they have a blank cheque to take Britain out of the European Union in any vandalistic way they choose.
Every day brings fresh evidence of the Government’s inability to agree what our future relationship should be. Last week, I listened to the Chancellor’s speech to the British business lunch in Davos. He clearly wants all the trade benefits of the single market without actually being in it. I admire his ambition but, like the Prime Minister, he is trying to dance on the head of a pin that does not exist. As President Macron said when he visited Britain:
“You can’t buy, by definition, full access to the single market if you don’t tick the box”.
The Government’s red lines mean that the box cannot be ticked.
Within an hour of speaking, the Chancellor was being attacked inside the Conservative Party. Some 90 minutes later, the Prime Minister, who first backed him after he had spoken, disowned him. By early evening, the Chancellor, rather than standing his ground, was tweeting a reinterpretation of his own words. This is what passes for a normal day at the office in this Government. It left British business leaders bemused and demoralised. To cap it all, at the end of the week, the Brexit Secretary was saying on the radio that, just because there are differences, that does not mean that the Government cannot negotiate coherently. Heavens! Is it surprising that the public are losing faith?
The only way to have coherence in a negotiation is if you adopt a unified view. I learned that much as a Trade Commissioner. Yet one side of the Cabinet says that it wants modest divergence from Europe and the other side wants to go it alone. As the noble Lord, Lord Hill, said, to govern is to choose. However hard it was inside her party, the Prime Minister should have adopted a clear position of principle from the outset and said that, because business needs stability in its dealings with Europe and has to protect its access to European markets, we will leave the European Union but continue in the single market and customs union. That would have given us a very advantageous negotiating position in Europe, where we would have met considerable flexibility and would have brought the whole country together—the 52% and the 48%.
I fully accept that that approach was not provided for in the referendum, but nor was it excluded. This is something that we should be clear about: the future relationship was not on the ballot paper. It cannot now be determined on the outer reaches of the Conservative Party as if the rest of the country does not matter. We are trying to come to terms with 40 years of intricate trading arrangements, intensified in recent times as a result of the single market, which Britain championed. That is why we should keep the economic disruption and damage to an absolute minimum and that, according to every opinion poll since the referendum, is the clear wish of the majority of the people.
We will not achieve this by Britain becoming a third-country exporter, like Canada, completely outside the regulatory perimeter of the EU, attempting to negotiate our goods and services back into Europe past a thicket of tariffs, customs and regulatory barriers, a world away from the frictionless trade that we now enjoy. The only option available to maintain frictionless trade in both goods and, crucially, services is to enter the European Economic Area, as Norway did when its people decided against EU membership in the 1990s. It is not perfect, because of the dilemma that we face: either we lose access to the European market that we need or we are bound by European regulation but lose our say, at least initially. That is the unpalatable choice presented by the referendum. It is joined to the further, difficult question of labour movement, but our starting point and guiding principle should be to put jobs and investment first.
The referendum result in 2016 cannot simply be ignored and no one is proposing to do so. The Government should be laying out all the options with enough clarity and detail that, before the final decision is taken on the implementation of the referendum, there is full debate and a truly democratic way of determining it. Ideally, in my view, this should be resolved by Parliament. Let us face it, though, as things stand both government and opposition parties are finding it hard to agree a way forward. So a referendum on a new question about the future relationship may become unavoidable, although that is not something on which we should be voting at this stage.
Brexit is the biggest decision that this nation has taken since the Second World War. We have to make a better job of it than the Government are doing now and Parliament must take seriously its responsibilities to ensure that the country does so. We should not duck that responsibility.
My Lords, as many noble Lords have already indicated, at one level this is indeed a technical Bill. If we are to leave the European Union, there is a legal and practical necessity to have continuity and certainty. However, as the noble Lord, Lord Mandelson, has just articulated so clearly and forcefully, it is impossible to ignore the context in which this legislation comes before us. Given its technical necessity, it is only fair that we ask whether it actually delivers in providing continuity and legal certainty. We have already heard the view of your Lordships’ Constitution Committee that as it stands it is constitutionally unacceptable.
Perhaps one of the clearest clauses in the Bill is Clause 1:
“The European Communities Act 1972 is repealed on exit day”.
That got me thinking. The European Communities Act 1972, a much shorter piece of legislation than this, has in fact stood the test of time. Yes, there has been litigation, but over 45 years it has performed its function remarkably well, notwithstanding the changes that have taken place since then. I dare anyone to suggest that the Bill that we are currently debating is anywhere near as robust and fit for purpose for such a major constitutional change. Its shortcomings will be well-rehearsed in this debate and scrutinised during its passage through your Lordships’ House, but I want to make a few remarks about it in relation to the devolution settlement. Here the Bill not only fails to deliver certainty; it undermines the certainty of that settlement, as the noble and learned Lord, Lord Hope of Craighead, forensically demonstrated in his contribution.
I believe the Bill turns the architecture of devolution on its head, more through a lack of proper thought and sensitivity than through malign intent. It also shows little respect for the devolved Administrations or for parity of esteem, which now seems to be out of the window. The structure of devolution in Scotland, as set out in the Scotland Act 1998, is that everything is devolved unless expressly reserved. That situation has stood the test of time. However, here we have proposals created by the Bill, especially Clause 11, where, in areas that otherwise fall entirely within devolved competence, extensive powers to amend retained European Union law fall to United Kingdom Ministers, rather than to the devolved Administrations.
I turn to two pieces of evidence given to your Lordships’ Constitution Committee. First, Professor Richard Rawlings of University College London said:
“At one and the same time, Westminster and Whitehall are freed up to shape a post-Brexit world in crucial respects, and the devolved institutions are locked down and required to wait for partial release”.
Secondly, Professor Tom Mullen of Glasgow University argues that Clause 11 alters,
“the framework of the devolution settlements by replacing a cross-cutting constraint on devolved competence with what is effectively a new set of reservations. It would also overlay the current reserved powers model of devolution with a conferred powers model in relation to retained EU law. This is not a mere technicality; rather the reserved powers model is a central element of the constitutional strength of the current devolution arrangements”.
These are quite bold statements from constitutional experts that go to the heart of what is wrong with the Bill as currently constituted.
While we will obviously deal with these matters regarding the structure of Clause 11, there are a number of other points that we will want to look at as your Lordships’ House considers the Bill in Committee. There is the apparent failure to recognise the statutory delay between a Bill passing in the Scottish Parliament and receiving Royal Assent, which is relevant for references to enactments in the Bill. Why is it that Scottish Ministers have some powers to deal with deficiencies in retained European Union law, but not if it is a deficiency in direct EU legislation, which is left solely for UK Ministers? No explanation has been given as to why that difference is made. Why are sweeping powers for UK Ministers found in Clauses 7 and 8 subject to a sunset provision, but apparently not the powers in Clauses 10 and 11, and in Schedule 2, which relate to powers relating to the devolved Administrations? Why is there a sunset clause for one set of powers and not for those that deal with the devolved Administrations? Absence of sufficient requirements for, or consultation with or consent from, Scottish and Welsh Ministers in devolved areas adds up to a disregard for the idea of parity of esteem.
The Government have accepted, and the noble Baroness the Leader of the House has said again today, that Clause 11 is deficient, and they have promised amendments. It is important that we know, as the Bill progresses, when we are likely to see these amendments. A legislative consent Motion is not a legal requirement, but we should all know that it is very much a political requirement if devolution and the fabric of our United Kingdom are to remain.
I believe we could have an opportunity to have a silver lining to the dark cloud of Brexit and do some things better in our arrangements with the devolved Administrations. The Welsh Assembly Government have floated the idea of joint ministerial committees on a statutory footing. We need ways to find better dispute resolution mechanisms than we have at the moment under the memorandums of understanding.
In its report on the Bill, the Public Administration and Constitutional Affairs Committee of the House of Commons, reflecting on Clause 11, said in its first report:
“A set of effective relationships based on mutual trust and effective communication and consultation are essential for the internal governance of the UK, following its departure from the European Union”.
I fear that the Bill as it stands does little to foster mutual trust. It suggests that there has been ineffectual communication and its drafting is conspicuously lacking in provision for consultation. In our deliberations and scrutiny, I believe we can start to make amends by making amendments.
My Lords, I did something very controversial during the EU referendum campaign: I went against my own party’s remain position. I campaigned to leave the EU because the EU is a top-down project designed to promote endless industrial development and economic growth. It remains my strongly held belief that we can have a greener, fairer, healthier country by leaving the European Union. In taking this view, I feel a strong personal responsibility to Greens everywhere and to the country to do what I can to ensure that Brexit is a success for the environment. I still want to leave the EU, but I absolutely cannot support the Bill as it stands. The Constitution Committee has described the Bill as,
“fundamentally flawed from a constitutional perspective in multiple ways”,
but it is fundamentally flawed from an environmental and social perspective too. It remains government policy that through Brexit we will strengthen our democracy, protecting and enhancing environmental and social laws in the process. In its current form, though, the Bill will fail on all those aims and, sadly, the gaps in it will leave the environment as the biggest casualty.
The Bill does not do what it was promised it would do: it does not ensure that existing EU law is retained. In fact, it explicitly excludes certain aspects of EU law without any justification. For no clear reason it drops some fundamental principles of EU law, such as the precautionary principle that must currently be applied by courts, businesses and government. Additionally, the Bill retains EU laws without their accompanying preambles. This misses out, for example, the “polluter pays” principle from the environmental liability directive and loses the aim of biodiversity conservation from the habitats directive. These omissions lose crucial interpretive aids for the courts in some obscure attempt to squash a square peg into a round hole as we bring the body of EU law into the literal system of English law. I struggle to understand how the courts will continue to apply retained EU law when these essential principles are gutted from our jurisprudence. Indeed, senior judges have expressed the need for Parliament to make this as clear as possible. We are setting ourselves up for decades of legal chaos while we needlessly undermine our environmental and social protections.
I am warmed by the many promises this Government are making about ambitions for the environment and their pledges to bring forward legislation. However, I note a very deliberate change of tack in their approach to the Bill. No longer is it seeking to retain all EU law and bring everything into order to prepare for Brexit. The Government are now saying that a whole raft of other Bills are the correct place for retaining some of these really important parts of EU law. It is the promise of jam tomorrow, which we more or less do not accept. I suspect that this repositioning is a government tactic to avoid some very important amendments being made to the Bill while passing through scrutiny. There may well be better legislation in future in which we can establish the lasting legal frameworks that will define our post-Brexit lives, but we only have the Bill before us now and we cannot allow deficiencies in it to prevail in the hope that some future Bill may address them. We must amend and repair this Bill so that it is fit for purpose, and I hope there is sufficient will in this House for that to happen.
I shall speak on two issues in particular. First, on animal sentience, there has been a surprising amount of public support lately for this rather technical-sounding principle. We are a nation of animal lovers who understand in our hearts that living creatures deserve respect and care, and that humans should avoid their suffering as far as possible. The Government’s attempt to head off amendments to the Bill has been to publish a draft Bill recognising animal sentience, but that achieves the opposite of their intention by setting out a perfect example of how the Government could well fail to replace EU law with equivalent provisions. A legal opinion commissioned by Friends of the Earth has compared the provisions of the draft Bill with Article 13 of the Treaty on the Functioning of the European Union. Article 13 requires the state and its bodies to “pay full regard” to animal welfare. It has a very narrowly limited set of permitted exemptions. Contrast this with the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, which requires Ministers only to pay “regard” to animal welfare, balanced against other matters of public interest. This makes the relevant considerations a matter of fact to be assessed by the decision-maker, subject only to the relevant legal test of irrationality.
So animal sentience and animal welfare is an ongoing example of the withdrawal Bill failing to bring EU law across into domestic law, and of the Government’s proposed alternative legislation failing to give the same level of protection as exists in EU law. Far from setting a gold standard, it is a significant undermining of the current position. Accordingly, this makes me quite sceptical that the Government will be able to protect and improve on EU law in other Bills. It seems incumbent on us to fix whatever deficiencies exist in the Bill now so that we can be sure, when it goes to the other place, that they will have a good Bill to comment on.
The second issue is the Henry VIII powers contained in the Bill. The reports of the Constitution Committee have done a fantastic job of setting out these issues. I am sure that many learned Members of this House will cover the detail of the constitutional implications, so I will focus on the principles that are at stake. The Government are giving themselves some very broad powers, which could even be used to grant themselves more powers. I know that many civil liberties organisations are very concerned about human rights. Stonewall, for example, would like a clear commitment that LGBT people’s hard-won rights will be protected.
I want to be constructive; I remain supportive of leaving the EU, but the Bill before us is the wrong way of going about it. I am confident that the collective wisdom in your Lordships’ House will bring this Bill into a much more palatable form but, as it stands, I cannot possibly vote for it.
My Lords, this Bill and the debate on it clearly mark something of a milestone in the move towards Brexit. It is appropriate that we should therefore take stock of the situation we are now in. We are effectively debating the principle of the Bill, which tends to embody the result of the referendum. Not all that many of those in the Chamber today took part in the debate on the referendum Bill. I took an active part and what was absolutely clear was that the Government had introduced a Bill on a referendum which was advisory—it certainly was not mandatory—but this has been very carefully forgotten. Somehow, in the morning after the result was announced, the Prime Minister—perhaps somewhat surprised by it—came out treating it as if it were absolutely descended from the heavens and nothing whatever could be said in disagreement with it.
This raises the whole question of the role of referendums in our society. There is a popular view—not least in the Daily Mail and elsewhere—that referendums are democratic. They are not democratic in the sense of democracy as we mean it in this country, which is a representative system of democracy. They undermine that representative system. I certainly do not go along with the idea that we should have another referendum, and it is high time that Parliament asserted its position as far as that is concerned. My noble friend on the Front Bench said again today that we must honour the result of the referendum. It was the most sordid political campaign that I can remember in my lifetime—it was riddled with liars. Anyway, a majority of the British people did not vote for it. A large number realised that they did not understand the issues and decided not to vote, and even the majority of those who voted was not that large. So the argument that we must honour this seems a rather doubtful proposition.
The whole result of the referendum has been to undermine what we believe in this country: that Members of Parliament are representatives not delegates. Once you have a referendum they become, to a large extent, a delegate and not a representative, and do not have a chance to weigh up the arguments that are put forward. So, as far as that is concerned, we should take a more sceptical view than we have so far about the result of the referendum. The crucial thing is that, at the end of the negotiations, this House should make a decision. Another referendum might produce a result that I would be delighted with but, none the less, it is not the right approach. We, as a Parliament, have to reassert our position.
The other thing that puzzles me is that a doctrine seems to have emerged which says that, if you are in a negotiation, you must not say what you want, because that somehow undermines your negotiating position. This has been said quite explicitly, and the result is that the Government simply are not saying what they want. For example, on the crucial issue of the City of London there is a serious danger in the interim of people leaving and going to Frankfurt or wherever. We cannot have this degree of uncertainty. We must take a more positive line. Right at the beginning, when Theresa May took the referendum as mandatory, she seemed to rule out straightaway the customs union and so on, overlooking the fact that there is no conceivable answer to the Irish border problem if we do not remain in the customs union, in name or some other way. We should not have allowed that position to be eroded at such an early stage in the proceedings. We need to have a much clearer view of what the Government actually want. We have not been getting that. We desperately need it and soon.
Finally, we have in front of us a splendid report published by the Constitution Committee yesterday. It is very sad that the House of Commons did not have sight of this before they debated the matter. In all events, we now have it and it is really rather definite. It says:
“The Bill as drafted is constitutionally unacceptable”.
That is a nice clear statement. It raises the question of whether we should vote for the Bill. However, it goes on rather more optimistically to say that,
“its aims are valid and it can be amended to make it both appropriate and effective”.
We face the prospect of going through all the details to try to make the changes that the Constitution Committee has recommended. One ought to ask the Government whether it would not speed up the process—goodness knows we are running out of time—if they were to table amendments of the kind suggested by the Constitution Committee. We need to make progress and we need more clarity.
We certainly do not need any more referendums. I spend a lot of time in Holland. The newly formed Dutch coalition Government, having experience with a referendum on Ukraine, have come to the view that they should pass a Bill prohibiting any more referendums. I am heartened by that. Moreover, they would not have a referendum on whether you can have a Bill prohibiting referendums. That is something we ought to consider very carefully in this country.
My Lords, can the Lords stop Brexit? No. Can we ask the Commons to think again and stop Brexit? Yes. First, we have to recognise the causes of Brexit. I have been back through the cuttings for the period before the referendum. Will Hutton in the Observer had it in a nutshell the week before. He listed loads of benefits of EU membership, but he went on to list a set of issues that the less well off and the left behind suffered from that left them wanting to leave the EU: lives are tough; bad jobs on poor wages; lousy housing; worsening public services. The list went on, while, he then said, the rich feather their nest. Most of the issues that are the causes of Brexit are not the EU’s fault. Many of the issues that are the causes of Brexit can be placed at the door of the 2010-15 coalition Government. But so what? It was a chance, for once, for the left behind to hit back.
Andrew Rawnsley pointed out before 23 June that,
“the telling of bare-faced lies has been rarer”,
in British politics if only for “fear among its protagonists” about their reputation when found out. He pointed out that the referendum had,
“introduced a novelty to British politics: the persistence with a lie even when it is verifiably a lie”.
The £350 million on the side of the bus and the 77 million people from Turkey, which was just about to join the EU, were indeed whoppers from public liars. That is the fact. We should recognise the causes of Brexit. Do not tell the people that they got it wrong on 23 June. They did not like the status quo and neither do I. The issue should be fixed where it started—in Parliament. It began with a Prime Minister betting his nation for party peace. He lost. The Lords must put country before party.
The nation is split in a way that I have not known in 44 years at Westminster. Mrs May has not shown the slightest concern about the 48% voting remain, nor the 63% who did not vote leave. I was committed to voting remain, compared with my no vote in 1975. I do not want the country damaged to prove my points, but I fear it will be several more months before the penny drops on the overall damage to the future in terms of jobs, the economy and a bleak future for generations to come.
The danger that Northern Ireland has been placed in is clear. There are international treaties relating to all-Ireland issues, such as food safety, animal disease, electricity supply and integrated dairy production, that Brexit cannot take account of. The island of Ireland has 15% of the world’s infant milk formula market—a world player that will be saddled with a hard border.
Evidence to select committees has shown that in subject after subject the outcome of Brexit will be negative. The UK is still a member of the EU, but a recent witness with first-hand experience stated to the committee that I serve on that the UK is already considered no longer “a key political actor” but a mere “technical consultant”—that was in our energy security report—yet we led on the creation of the single market in goods and then the internal energy market. The UK has never operated the opportunities to restrict the absolute free movement of labour, as provided for under EU rules, because the CBI and the fat cats desired total free movement to ensure low labour costs.
However, it is never too late to avoid making a bad decision. The bad decision is not that of 23 June but the actual departure. The people should be allowed to make an informed choice to leave or not. That was not on offer at the referendum. The electorate in 2019 will be different from that in 2016. The role of the Lords as the unelected revising and scrutiny Chamber is sometimes to ask the Commons to think again. I did not serve for 27 years in the Commons to undermine it from the Lords. The Commons will always have the last word. However, the facts on Brexit are better known now. There are fewer unknowns and more knowns.
The powers of the Lords are extensive but not used as we are unelected. We all know what the conventions are and we must abide by them in spirit and word. Any attempt to deviate from the conventions will force me to vote with the Government for the Bill. I will not mess about with abstaining. I will defend the conventions because I am concerned about what might be done in two or three years’ time.
I want the Bill to go back to the Commons amended in a variety of areas, not least giving the people the choice to leave or remain based on the evidence of facts, not lies from a soapbox. The key is that the Bill is amended in the interests of the whole nation, not a political tribe. The leadership of my tribe does not have clean hands on this issue because it has been a case of tribe before country. The big political tribes are not as they were before 23 June 2016. Within each there is a flock that has more in common with each other than the tribe that they are a part of. I recently sat in this Chamber listening to one of the most powerful and thoughtful speeches that I have ever heard on industrial policy, thinking to myself the deadly thought that if the noble Lord, Lord Heseltine, were the leader of a tribe, I could join it. He is not, so I remain where I am—for the moment.
My Lords, it would be a brave tribe that took on the noble Lord. The noble Baroness the Leader, in introducing the debate, made a point of saying that this was a technical Bill. However, she has since had the experience of listening to the forensic dissection of the Bill by my brother advocate, the noble and learned Lord, Lord Hope. If the noble and learned Lord takes part in these proceedings in the way in which he foreshadowed, the government Bench will have to be about its business.
I do not believe it is possible to debate this Bill, technical or otherwise, without having some account of the political context in which it is brought. I want to deal first with the question of Scotland. I have little to add to what the noble and learned Lord or indeed my noble and learned friend Lord Wallace have said. However, the Government’s approach has been playing into the hands of those in Scotland who seek independence by blaming London for everything. If you want to give wind to the sails of those who wish for a second referendum in Scotland on independence, then continue to proceed in the way in which the Government have done so far. I cannot emphasise strongly enough the importance of accepting the nature of the relationship between the devolved parts of the United Kingdom. As the Constitution Committee pointed out in its report, failure to secure legislative consent would have “significant constitutional repercussions”. To that I would add, “and significant political repercussions as well”.
Another area of uncertainty to which noble Lords have referred is that of Ireland. I want someone to tell me, perhaps by the end of the two days of this debate, precisely what constitutional and legal mechanism the Government propose in order to achieve the fact of Northern Ireland continuing to have the same border arrangements with the south of Ireland but that does not involve membership of the single market and the customs union. I have seen no evidence that such a thing is possible. If the Government have it, let them tell us it now.
As if these things were not enough, we now have a Government who are infused with discord, weakness and ambition. Why is that so? Here I seek to answer the question asked by the noble Lord, Lord Higgins: it is not because they will not reveal their negotiating position but because they cannot agree one. They have said they want a good bespoke deal, but what is a “good” deal and what is “bespoke”? What is it that the Government actually want? It is not just Members of this House who want to find out; Mr Barnier and the 27 other nations of the European Union want to know what we want. So far, we have been unable to provide that because of the divisions in the Government and the Cabinet. As for Mr Macron, he came, he saw and he conquered. We gave him the red carpet treatment and he promised us the loan of a tapestry. The whole visit was an outstanding success until someone said: “What about access for financial institutions?”; to which he said, “Be my guest”. People’s hearts rose, thinking that this was all going to be easy, but then he added a coda: “Be in the single market, and be in the customs union”. That is deeply illustrative of the attitude that the European Union has taken and will continue to take.
In the meantime, the Brexiteers seem determined to undermine the Chancellor and, now, civil servants. If you undermine the Chancellor on Brexit, you undermine him on economic competence. The more that the Prime Minister is undermined by her party over questions of leadership, the more that she will be undermined in her capacity to negotiate with Mr Barnier. The more that she is undermined by her own party, the less influence she will have with President Trump on the proposed trade deal. The Prime Minister has had to cancel making a speech that she was going to make setting out the Government’s position, and is going to the security conference in Munich instead. If she has the same experience in Munich that the Foreign Secretary had last year, she will find that Brexit is on the table all time and that any effort to, as it were, hide behind the fact that this is a conference normally committed to discussing security will not provide a defence for her. I hesitate to say this but, in the light of the conduct of the members of the Conservative Party in the Cabinet, there must be the possibility that during the passage of the Bill through your Lordships’ House the Prime Minister could face a leadership contest. This is Chamberlain territory, and its consequences for this legislation are beyond understanding.
Finally, let me make this point. The noble Lord, Lord Dobbs, was quite right to refer to tumbrils. Those who want us to leave the European Union have already got their own committee of public safety. Mr William Rees-Mogg bids to be Robespierre, and he has threatened this House—
Mr Jacob Rees-Mogg; one Rees-Mogg is very much like another. Mr Jacob Rees-Mogg has threatened us, and my answer to these threats is this: I am not here to thwart the will of the House of Commons. Like the noble Lord who has just spoken, I spent 28 years at the other end of the building asserting the primacy of the Commons, and I will not depart from that simply because I have been sent to your Lordships’ House. But I know what my duty is: it is to bring to the attention of the other House the manifest defects that exist in this legislation. We may not make them any wiser, but if we deal properly with this Bill, we will make them better informed—heaven knows they need it.
My Lords, the noble Lord, Lord Adonis, referred to ex-Foreign Office luminaries. I am ex-Foreign Office, but I make no claim to be luminary; indeed, I am not entirely sure I agree with some of what it is saying.
I will cover rather different ground in my contribution, which, as usual, will be brief. Until I read the papers for this debate, I had not myself realised the extent to which the UK has been inexorably drawn into a binding legal structure so completely different from what the public, and I, originally voted for. However, the public have now come to recognise this, instinctively, if not in detail. That may explain why the outcome of the referendum was as it was: quite clear, but, as we have all recognised, narrow.
Irrespective of their own vote, many members of the public now look to the Government and to Parliament to get on with it and extract us from the European Union. In looking at this Bill, we must surely play it straight with the public. There are, no doubt, many valid and important legal objections to the Bill as drafted, but any impression that legal arguments are being used as a cover to frustrate the UK’s departure from the EU would be deeply damaging to the future of this House and, perhaps, to our political system as a whole, as the noble Lord, Lord Dobbs, pointed out earlier.
I would like to refer specifically to one central issue, which is something of an elephant in the room. Noble Lords will have guessed that I am talking about immigration. There is no doubt that this was a major issue—some would say a decisive issue—in the referendum. Therefore, surely the outcome of this process must lead not just to control over immigration but to a substantial reduction.
Let me illustrate the consequences of failure to get such a reduction in three brief, simple but telling points. First, over the last 10 years net migration has been running at about 250,000 a year, almost half of it from the European Union. Secondly, at these levels of immigration, our population would grow by almost 10 million in the next 25 years, of which 82% would be due to migration. Thirdly, the continuation of current levels of net migration to England—I am talking only about England here—would mean having to build a new home every five minutes, day and night, just to house new migrants. This is just the tip of the iceberg. Public concern about the scale of immigration is well founded and should not be condescended to. More generally, the public are also aware of something of an alliance between some employers who prefer to employ cheap foreign labour and a metropolitan elite who sometimes suggest that any call for control of immigration is essentially xenophobic. If nothing else, the vote for Brexit has signalled a need for this to change.
This is not the place or the occasion to pursue these matters any further. Indeed, the implementation Bill in the autumn and the immigration Bill expected shortly will be more directly relevant. In conclusion, I simply invite the House to be alert to the wider consequences of our work for the future size and, indeed, nature of our society.
My Lords, this debate deals with the consequences of overturning 50 years of British public policy, seemingly doing so overnight as a result of the referendum. My purpose in the debate is to follow those who have talked about the role of the House and how it should deal with the legislation before us.
As my noble friend the Leader of the House pointed out at the start, this is a process Bill. Whether it is a technical Bill or a process Bill—I am not entirely certain of the difference—it deals with a process. We will in future be faced with Bills that deal with a whole range of policy decisions that emanate from passing the legislation. The Bill was born out of the referendum and the passing, by substantial cross-party majorities in the House of Commons, of the Article 50 Bill. It follows the general election, when both main parties made certain commitments about honouring the will of the people as laid out in the referendum. That would have been the time for the political parties to change their minds if they were so to do. The Bill comes to us after a gruelling passage in the House of Commons, which you cannot always say about Bills that come from another place. In this case, no stone has been left unturned in seeking to improve it.
Our reputation outside this House is for debate, scrutiny and revision, and for doing so in an excellent manner. We should do this again on this Bill. However, what is different from almost any other political Bill that we receive is that we should do this in the most positive and constructive manner. There have been some very good hints at that in the debate so far. I echo what my noble friend Lord Hill of Oareford said a few moments ago. I encourage what I am sure the Government would want to do, which is to be constructive too. It is what people outside this House would expect of us. The House of Lords is always at its best when it is opposing the Government but doing so by being on the side of the people. My noble friend Lord Dobbs reminded us graphically of the consequences of not doing so by telling us about what happened in 1911.
I understand why some Members of the House and perhaps even the Constitution Committee should be concerned by some aspects of the Bill, particularly the extensive Henry VIII powers the Government have sought to give themselves. These are important powers and I expect the Government to explain in detail in Committee why they need them in the way they have asked for them. But there is also a responsibility on those who want to change them to explain and demonstrate how that change will improve the process of the Bill without gumming up the legislative works not only in this House but in another place.
It has always been my view, since I joined this House in the 1980s, that this is a Europhile House and always has been. The Government have no majority in this House. The noble Lord, Lord Rooker, reminded us of the important powers that reside in this House, and the noble Lord, Lord Adonis, has in part used those by proposing an amendment. I really do not think this is the Bill on which we should use those extensive powers. Differences exist within the parties – more so, sometimes, than between them. If the Bill is to be amended, then let it be done with co-operation and consultation between Back-Benchers and Ministers, so that when we eventually send it back to the House of Commons, it says something important about our ability to make a change in the House of Lords.
My Lords, this Bill offers possibly the last guaranteed parliamentary opportunity to change the Government’s Brexit strategy, prevent a hard Irish land border and protect all the precious gains of the Good Friday agreement. To achieve that, since the DUP has quite understandably insisted that Northern Ireland must not have a separate constitutional status from the rest of the UK, surely not just Northern Ireland but the whole of the UK must stay in the single market and the customs union.
As the CBI, supported by the TUC, has made crystal clear, our businesses do not want to be cut off from their largest markets, or from the EU’s regulatory bodies that guarantee our access to them, in return for promises of jam tomorrow in far-flung emerging markets. UK services exports to Europe are around 60% higher than those to the US, and twice those exported to Asia. The 11 countries in the Trans-Pacific Partnership, favoured as an alternative by Brexiteers, account for only 7% of our trade, while Germany alone accounts for 11%.
As for the claims that, once freed from the EU, the UK can negotiate preferential trade deals with third countries, the truth is that we already have 60 such deals through the EU that unless renegotiated in time, which is highly unlikely, will actually cease to apply after Brexit—that is, by March 2019. Furthermore, with a market of over 500 million people, the EU often negotiates trade deals that are far more comprehensive in scope than those achieved by individual countries outside the EU, so the likelihood of the UK getting even better terms with third countries than we already have through the EU is minimal. Remember that many non-EU countries, such as Japan, invest here because of the level of access that they currently have from the UK into that larger EU market; access that their UK-based companies will lose once we are no longer in the single market and the customs union.
Trade deals take years to negotiate. They are usually designed to secure the convergence of standards and regulatory regimes, not divergence, which is what Brexiteers want in relation to the EU. Moreover, because of the EU’s internal budget timetable, Brussels is now suggesting that the transition period should finish at the end of 2020, after just 21 months. There could then be a dramatic cliff edge, with queues of lorries stretching for miles in Kent and gridlock on the roads of Northern Ireland. This is the true prospect for Brexit Britain, not the fantasies of the Government and the Brexiteers.
Another government fantasy is more ominous. No one who really understands the complexities and dangers of politics on the island of Ireland seriously believes that keeping the border open can be achieved without Northern Ireland staying in the same single market and customs union as the Irish Republic. The 8 December agreement requires the UK to retain “full regulatory alignment” with the EU to prevent a hard border with customs posts and security checks. Meanwhile British Ministers, divided over what was actually agreed, waffle about a high-tech frictionless border. They remain in denial about the reality that, for the European Union, protection of the integrity of the single market—which is a legal construct, not a political arrangement—means that you cannot be half in, half out.
It is important to recall that the 1998 Belfast Good Friday agreement, and the peace process which followed, was explicitly designed to depoliticise the Irish border by making it completely open. Any restriction whatever would completely undermine the agreement, which, by the way, formed an international treaty with the Irish Republic, recognised by the European Union. Border posts, customs personnel and surveillance technology could provide sitting targets for dissident republican paramilitaries to rerun the IRA’s border campaign of 60 years ago, also provoking the reactivation of their loyalist paramilitary counterparts to defend Ulster.
Worryingly, Dublin’s and London’s interpretations of the December first-phase deal are very different. The EU sees it as binding Northern Ireland and the whole of the UK to the EU’s regulatory domain; the UK sees it as merely an outline containing work in progress, with the Cabinet divided and unable to resolve the implications. The contradiction is that EU rules do not permit frictionless trade while Northern Ireland—and by extension the UK—is outside the customs union and the single market. Remember too that the Good Friday Belfast agreement is not only of constitutional and institutional importance; it requires a shared regulatory structure for cross-border movement, trade and co-operation.
Surely our duty in your Lordships’ House is therefore to act over this Bill for the whole of the UK and not just for part of the Conservative Party. Surely we have to persuade the Government to stay in the single market and the customs union to protect our economy and, above all, to protect the Good Friday agreement and avoid the catastrophe of a hard Irish border. Everyone says that they do not want such a border, but we are accelerating remorselessly towards it, as long as the Government remain so dogmatically rigid about the terms of Brexit.
My Lords, I asked a sixth-form politics class the other day what the phrase “House of Lords” brought to mind. I expected “ermine”; I got “not elected”, “scrutiny” and “red”—spot on, of course, as regards the issues arising from this Bill, though I will happily discuss tapestries with the noble Lords, Lord Dobbs and Lord Campbell.
I recently asked a Question about Home Office statutory instruments derived from EU legislation. The Answer was,
“we are not in a position to give a sense of scale at this time”.
That was as recently as last month and it encapsulates the widespread view that the Government are floundering. Even if they do not agree with the policy, people expect competence and coherence.
The procedures that the Bill puts in place must be fit for the job—quite some job. This of course includes, as noble Lords would expect me to say, seeking the opinion of citizens—a word I am more comfortable with than “people”—on the terms. I am of course concerned, as others are, about the powers that the Executive seek to keep for themselves, and about public bodies which may not put transparency, let alone accountability, high on their agenda.
This House’s culture, as we would all agree, is one of rigour in its scrutiny. We should not only capitalise on that, but address how we co-ordinate with the Commons and not simply operate in parallel with it. We should also address the absence of real power to deal with what may be secondary but is after all legislation, which is maybe a big part of the reason why the Commons have over the years been less focused than we have on statutory instruments. The term “appropriate” is one which, to my mind, should rarely have a place in legislation. What is appropriate is often in the eye of the beholder. We are lucky to have such big brains here who can see both the big picture and the detail regarding, among other things, delegation and legal certainty.
One of the big rule-of-law issues is the non-retention of the European Charter of Fundamental Rights, singled out as the exception to the objective of continuity. The Government assert that it is unnecessary, the noble Baroness the Leader of the House today used the term “reaffirms” and occasionally the Government claim that it adds “extra” undesirable rights, although I cannot quite reconcile all of those. The Joint Committee on Human Rights, of which I am a member, has corresponded with the Secretary of State about the charter. I felt as confused as Alice, though perhaps without the wonder, by some of the responses. To a request to list the instruments that underpin the provisions of the charter but which are not incorporated into domestic law, we were told:
“We are not entirely clear which instruments are being referred to”.
Well, quite; that was our point. The JCHR has published a commentary on the Government’s right-by-right analysis of the charter, dealing, crucially, with the remedies by which those rights are enforceable, from Article 1, the right to human dignity, which is not a distinct right set out in the ECHR so there is no enforceable right conferred on individuals, to Article 50, the right not to be tried or punished twice for the same offence, to which the same, although we have the common-law protection. I hope the JCHR’s work will be helpful to noble Lords’ dissection of Clause 5.
Lastly, I want to refer to another major uncertainty, this time a personal one: that of EU citizens in the UK and of British citizens elsewhere in Europe. We were all told there would be no change to our laws the day after exit day, while they were told their position would be unaffected. That is patently not the case, since they are going to have to apply for status. They were the “first priority” but the Government gave every appearance of being dragged towards items in the progress report of last December, and of course they are within the caveat of “nothing agreed until all is agreed”. There will be immigration rules and the more complicated they are, the greater the likelihood of errors, with an added hurdle provided by the Data Protection Bill regarding restrictions on access to data where immigration control is concerned. Meanwhile there are deportations of EU citizens that are not in accordance with the directive, which allows only for cases of current threats to society or security. I mention that with a view to the nature of our society, but sadly the noble Lord is no longer in his place.
Recently I was asked by someone in his 20s what the major considerations were at the time of the 1975 referendum. I talked to him about the aim of “No more war in Europe”. He was very struck by how that has morphed into economic arguments. Well, not entirely: this is about individuals’ lives.
My Lords, I apologise to those noble Lords who thought they had reached their lunch break; my name is hidden in the spillover on the second page of today’s speakers list.
I do not disguise the fact that the wording of Clause 1 of the Bill:
“The European Communities Act 1972 is repealed on exit day”,
strikes a dagger to my soul. My career has been long enough that I remember the difficulties with which the UK negotiated membership of the European Economic Community, and I have been conscious of the benefits that our country has derived from the membership of what has now become the European Union. Having said that, I think I understand why the 52% voted as they did.
The rush towards a federal union is a mistake and may lead to disaster. Nevertheless, there is one thing that is worse than being a member of the EU—not being a member of it.
The United Kingdom being motivated by an illusory quest for independence, in a world which becomes more interdependent day by day, is a painful prospect. It becomes more so when the UK appears to be carried along on a tide of narrow nationalism which has brought so much trouble to Europe and the world. However, I shall not vote against the Second Reading of the Bill, nor shall I support any attempt to delay it. Given the decision of the British people in the referendum, and the notice given with the assent of Parliament under Article 50, I agree with those who say that the Bill is necessary so that there is not a void in UK law if and when we leave the EU.
Ever since the referendum I have argued that the British people are entitled to a further say when the terms of the UK’s departure are known. However, I agree with the Leader of the Opposition, and other noble Lords, such as the noble Lord, Lord Mandelson, who said that this Bill is not the appropriate vehicle to require a further referendum. I shall, however, support any amendments which may be necessary to ensure that a further referendum will be among the options when Parliament is given a meaningful vote at the conclusion of the negotiations.
There is clearly a substantial job for your Lordships to do on this Bill within our normal constitutional role of scrutiny, improvement and giving the Commons an opportunity to think again. There are areas where the Government have said they will bring forward further amendments, for example on the relationship with the devolved assemblies. The role of the House of Lords in scrutinising delegated legislation, introduced under Henry VIII clauses, needs to be clarified. There are important issues relating to the interpretation of judgments of the European Court of Justice and the place of the European Charter of Fundamental Rights. As has been said, we owe a great deal to the House’s Constitution Committee in identifying these areas and suggesting remedies.
I believe that there is a job for this House to do, without straying beyond its proper constitutional role. I share the hope that we will do it firmly but constructively.
My Lords, the Government have not made an assessment of the Civitas report The Brussels Broadcasting Corporation?, as the BBC is operationally and editorially independent of the Government. Under its royal charter, the BBC has a duty to deliver impartial and accurate news coverage and content. The BBC is also subject to the Ofcom Broadcasting Code, which requires that news is reported with due accuracy and presented with due impartiality. As the new external regulator of the BBC, Ofcom can also consider complaints relating to the BBC’s output.
My Lords, I thank the Minister for that predictably bland reply, but the Brexit Secretary, Mr David Davis, said to me recently that his job in Brussels is made even more difficult if, every time he makes a small advance there, he is promptly undermined by the BBC. Are the Government aware that the BBC cannot give a cross-party group of MPs an example of a single programme since the referendum which has examined Brexit opportunities—not promoted them, just examined them? Secondly, is it acceptable that the BBC has not debated the ideas behind the project of European integration and whether they are still valid today?
The noble Lord comes from a particular viewpoint, and we understand that he takes its coverage very seriously. He knows that the royal charter has made the BBC independent, and it is very important that Ministers do not get involved in the editorial opinions and conduct of the BBC. That independence is guaranteed in Article 3 of the royal charter. Secondly, there is an established complaints procedure. What is different now is that there is a unitary board holding the director-general, who is the editor-in-chief, responsible and that Ofcom, which has a code, is for the first time the BBC’s regulator, so the noble Lord can also complain to Ofcom.
My Lords, is the Minister aware that the noble Lord, Lord Pearson, and those of his ilk would not be satisfied if every programme that the BBC broadcast on current affairs started with a litany which said, “Confusion to the Commission and down with the tyrannous EU!”? That would not be enough for them. It is vintage Trump: “I didn’t say it. If I said it, I didn’t mean it. If I said it and meant it, nobody believed it”. It is the last screech of a dying cause.
My Lords, I do not blame the Minister for the Answer that he read out, but does he not think as an individual, a private person, that there is something wrong when, out of 4,275 guests talking about the EU on BBC Radio 4’s “Today” programme between 2005 and 2015, only 132, or 3.2%, were supporters of the UK’s withdrawal from the EU? Frankly, the BBC has become the supporter of a foreign organisation called the European Union. Could not the Minister quietly whisper in somebody’s ear, “Get your act in order, because you owe a duty of impartiality”?
I agree with my noble friend that the BBC owes a duty of impartiality. I do not think anyone is particularly interested in my views as a private person, but as a Minister I care that Ministers keep out of editorial decisions. This question of impartiality is largely a matter of opinion. For example, I happened to read a letter to a pro-European website, which complained that the BBC had put Nigel Farage on Question Time 31 times since the programme began.
My Lords, following on from that, does the Minister not agree that every political party, including my own, and factions within every political party complain about BBC coverage, particularly on Brexit? Yet the BBC has clearly been successful in following the impartiality guidelines put forward in the new charter.
I think the BBC does a very difficult job well, but it is for members of the public, including noble Lords, to follow the complaints procedure—which is easy to do. The BBC receives, I think, 200,000 comments on its programmes per year. As I said before, Ofcom is there to make sure they stay within the code.
My Lords, as we abandon EU institutions, does the Minister agree that we should be bolstering rather than bashing our great British institutions? One of the most internationally respected and well-known of those that need bolstering is the BBC.
My Lords, is it not the case that, when somebody complains about political bias in the media, it is normally because they do not like what the person they are listening to is saying, rather than because of any real bias? In the days of fake news, does the Minister not accept that people have more faith in the BBC and national newspapers than in social media, which is completely unregulated, with anyone saying what they want? The noble Lord, Lord Tebbit, referred to the “Today” programme—some of us rather admire the way presenters on the “Today” programme interrogate people, whatever their views or political persuasion.
The noble Baroness is right: trust in media sources is measured each year by a survey, which clearly shows that the public believes radio and television more than it believes social media. Radio and television get a 74% to 77% approval rating, whereas social media gets a mere 15%. Members of the public are not fools.
My Lords, the Secretary of State for Exiting the EU, the right honourable David Davis MP, is responsible for conducting negotiations with the EU in support of the Prime Minister, including supporting bilateral discussions on EU exit with other European countries. DExEU supports this work by co-ordinating and overseeing negotiations and establishing a future relationship between the UK and the EU.
My Lords, is it not common knowledge that the Prime Minister has shifted the focus of negotiations to a competent official in the Cabinet Office, because she has lost confidence in a Brexit Secretary who complacently thinks the whole the matter is simple? His incompetence was proved by the shambles in the first stage of negotiations, which was only ended by a fudge on the Irish border. Will the Minister clear the matter up once and for all today, by telling the House how the Government plan to avoid a hard border while also leaving the customs union?
The first part of the noble Baroness’s question is totally wrong. The Secretary of State is doing an excellent job, and the Prime Minister is doing an excellent job in conducting the negotiations. We have said many times that we will avoid a hard border in Northern Ireland, and that remains the case.
We are conducting a wide range of discussions with all EU member states. I myself am visiting one on Thursday and Friday, and other Ministers are doing the same. We are advancing the UK’s cause and lobbying other member state Governments in advance of the full and special partnership that the Prime Minister has suggested.
I am always very happy to help the noble Lord, although I am not sure that my help is the help that he needs—but I shall do my best. I have responsibility for attending the General Affairs Council; for liaison for existing EU business; for the small matter of helping to get the withdrawal Bill through this House; and for liaison with the devolved Administrations in conducting ongoing EU business.
My Lords, given that the issues at stake in negotiating Brexit cover almost every department in Whitehall, is it not unavoidable that this has to be dealt with from the Cabinet Office, the co-ordinating department, and by the Cabinet itself, rather than DExEU? Is that one reason why there is apparently so much discontent within DExEU, and why it has four times the turnover of civil servants compared with the rest of the Civil Service?
I do not think that there is any discontent within DExEU. When the department was established, a number of officials were seconded from other government departments, and a number of them have returned to their original departments. But the noble Lord is right—these negotiations are complex and impact on a whole range of policy areas. Most departments in Whitehall are involved in one way or another, so of course it is important to co-ordinate that work, which is done both in DExEU and in the Cabinet Office.
Well, the noble Lord knows that I admire greatly his contributions on these subjects, but perhaps on this occasion he is not quite correct. The normal process of parliamentary scrutiny is appropriate. We, of course, as Ministers welcome the opportunity to account to your Lordships’ House; we will be doing that extensively over the next few months and have done over the last few months. Of course, it would be nice to see a bit more support of our position sometimes. Nevertheless, most people take a responsible attitude and want to question and probe us on the process, which is absolutely correct.
Can the Minister help us on the paper that has apparently been leaked? I know that he will not talk about the details of any leak—but on a paper that deals with the impact on GDP and various scenarios that affect us about Brexit, clearly, it would not be a leak if important documents like this were routinely made available to parliamentarians and others and we could then discuss them properly. I hope that there will be an opportunity for that.
Secondly, the paper apparently suggests that deregulating areas such as the environment, product standards and employment law could be an opportunity for the UK going forward. Who commissioned that paper? Is it true that it was his department and, if so, is that his negotiating position?
The analysis to which I believe the article refers is a preliminary attempt to improve on the flawed analysis around the EU referendum. It is there to test ideas and design a viable framework for the analysis of our exit from the European Union, and at this very early stage it considers only off-the-shelf trade arrangements that currently exist. We have been clear that those are not what we seek in the negotiations. It does not consider the desired outcome—the most ambitious relationship possible with the European Union, as set out by the Prime Minister in her Florence speech.
We have made it clear that we do not want a hard border in Ireland. The exact structure of the border and customs arrangements will, of course, emerge from the end-state negotiations. Where we end up will clearly have an impact on the border arrangements, and we have made that very clear.
Climate-related Financial Disclosures
My Lords, Her Majesty’s Government have endorsed the recommendations of the Financial Stability Board’s Task Force on Climate-related Financial Disclosures and encouraged all publicly listed companies to implement them. We are seeking views on companies’ ability to apply these recommendations with consistency through the work of the green finance task force and the recent streamlined energy carbon reporting consultation.
But that is voluntary. Do the Government agree with big investors in the UK economy such as Aviva that climate disclosures should now be mandatory, to set the pace for innovation and ensure that the UK secures competitive advantage amid the global race to green the financial system?
My Lords, that is one view. It was looked at by the Environmental Audit Committee inquiry on green finance, which sought evidence on the effectiveness of the TCFD’s recommendations and the Government’s role in supporting their implementation. There is broad consensus among stakeholders that companies will certainly require more time to implement the recommendations but some have recommended making disclosure mandatory within, say, two to three years. The Government have not yet taken a view on this matter and will consider it in due course.
My Lords, it is estimated that listed companies account for around a quarter of global carbon emissions, with oil companies obviously among the biggest polluters. Therefore, does the Minister agree that investors should have a responsibility to demand that those sorts of multinationals, in addition to individual countries, sign up to the Paris Agreement and set out their business strategy for a net zero-emissions world? That is the only way that we are going to tackle this issue on a global basis and ensure that we protect shareholder investment.
My Lords, I accept what the noble Baroness is saying: that is very useful information for investors and others who are interested in what the companies are up to. We explicitly ask for feedback on those TCFD recommendations and whether they should be mandatory in the long run. However, one has to balance against that the fact that it potentially imposes a burden on businesses, and one would have to look at how exactly that should be done. At the moment it is not mandatory. We will consider that in due course, but at the moment it is best that we analyse the responses we have had to the various consultations and then come forward with our recommendations.
Does my noble friend agree that climate-related financial disclosures should take into account the fact that the consensus among climate economists and, indeed, in the Intergovernmental Panel on Climate Change, is that the economic impacts will be positive for the next 40 or 50 years?
My Lords, my noble friend makes another point. If these impacts are going to be beneficial, there will be an even greater reason for companies to wish to list them in their financial disclosures. As I said in response to other questions, whether we make them mandatory is obviously a matter we want to consider in due course.
My Lords, the City recently released an excellent report, Fifteen Steps to Green Finance. One of its recommendations was that the UK should set up a green finance standards board. That would enable this country to take that sector of the finance market and call it its own, set standards globally and make sure that issues such as greenwash did not undermine that concept. Will the Government take that on? Should they not do it urgently to make sure that we corner that market globally?
My Lords, that is something else we can consider. Quite a lot of task forces and other boards exist at the moment; the Question itself relates to the task force on climate change and financial disclosure, set up by the Bank of England, and there is our own green finance task force. There is also the consultation I referred to earlier—consultations seem to be coming out of our ears. But I will certainly look at what the noble Lord said; whether it is right to set up yet another body is another matter.
My Lords, the Secretary of State for BEIS has given conditional approval to Third Energy to hydraulically fracture in North Yorkshire, very close to or under the national park. What checks are being conducted into the financial probity of Third Energy, which has failed to lodge its accounts for the last financial year?
Women: Events Industry
My Lords, we condemn all forms of workplace harassment, which is unlawful under the Equality Act 2010. The Government are looking at all aspects of the wholly unacceptable behaviour which is alleged to have happened at the Presidents Club dinner. The Prime Minister has committed to reviewing non-disclosure agreements and any evidence that comes forward. The EHRC has sent a pre-enforcement letter to the Artista agency raising concerns about its actions, and the Charity Commission is considering whether further regulatory action is needed for charitable trusts.
I thank the Minister for her reply. Many reports on this incident have claimed that the women employed at the recent Presidents Club charity dinner knew what they were letting themselves in for, yet of the 360 male guests, none saw what was going on and apparently they all left early. This has exposed the fact that these women, some as young as 18, were required to sign their rights away under gagging clauses, and were not allowed to talk about or report any sexual harassment or discrimination. How will women be protected from these crimes that may be committed against them, and how can they be made aware of their rights?
My Lords, it is important to understand that non-disclosure agreements, which I think the noble Baroness is referring to and which are sometimes called confidentiality agreements, may legitimately form part of a contract of employment. But these would be legitimate to protect trade secrets, for example. They cannot preclude an individual from asserting statutory rights, either under the Employment Rights Act or the Equality Act 2010.
My Lords, I thank the Minister for her detailed response, which was helpful. The obtaining of charitable status brings responsibilities, and many people are shocked that the Presidents Club was a charity. Will the Minister elaborate a bit more on guidance that is given to charities—surely there is no place for a charity to issue gagging orders or confidentiality agreements—and please ensure that this is a thing of the past?
My Lords, every time something like this happens we hope that it is a thing of the past, and there have now been quite a few occasions at which this sort of behaviour has gone on. The Charity Commission is interested in this matter because of whether this charity acted in accordance with the rules.
Does the Minister agree that Section 40 of the Equality Act 2010 was an important provision, providing protection for employees against harassment from third parties? Unfortunately, the coalition Government repealed the section in 2013, even though they held a consultation and 71% of people said they would like to keep it in. Does the Minister agree that Section 40 should be reinstated in order to guarantee legal protection against harassment from third parties, and would she go further and revise it so that it requires only one previous incident of third party harassment instead of the previous requirement of two or more? In that way, all those who experience harassment, wherever they work, will have some measure of protection.
My Lords, the noble Baroness is absolutely right. In 2013, the coalition Government did indeed repeal specific provisions of Section 40 of the Equality Act 2010 which explicitly made an employer liable where they knew an employee had been harassed at work by a third party on at least two previous occasions and failed to take reasonable steps to prevent it. These provisions, as well as being quite confusing, were considered redundant, as an employer can be liable for third party harassment under the ordinary harassment provisions in Section 26 of the Act.
My Lords, given that these young women are not very confident, is it not unreasonable to expect them to read gagging orders, find out what the problem is and then deal with it? Would it not be better to put the responsibility on the employers, who should not be employing them in the first place with this kind of responsibility?
My Lords, I think the noble Baroness has made the point that I was trying, perhaps not very articulately, to make. A gagging clause will not, in and of itself, protect an employer or someone who is, say, employing, a waitress for an evening. In fact, it will go further than that and void that contract or agreement.
My Lords, does the Minister agree that if you want to influence the behaviour of men you should start when they are boys? That is why it is very important that the curriculum for PSHE lessons includes elements that ensure that young people leaving school understand that both genders should be properly respected.
The noble Baroness makes a very good point. It is only in educating our children through PSHE, relationships and sex education that that culture of respect towards one another, the opposite sex, and, for young girls, towards themselves, will change.
I hope that if any good can come out of this pretty grubby incident, it will be to highlight the fact that employers, or, indeed, people employing casual staff for the night, cannot hide behind confidentiality or gagging clauses if this sort of behaviour goes on, because they will be void.
The noble Baroness makes a very good point. The person who raised this was a journalist and she was also a woman. I understand that the Presidents Club has been meeting for 33 years and this is the first time, to my knowledge, that this sort of behaviour has been reported at one of its events.
Automated and Electric Vehicles Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
European Union (Withdrawal) Bill
Second Reading (Continued)
My Lords, the years of Brexit are like dog years—each one feels like seven—so it feels like about a decade ago that I was sitting in DExEU talking to officials about the drafting of this Bill. Back then, the Bill, which cuts and pastes EU law into UK law, had been given the thoroughly Orwellian title “The Great Repeal Bill”, which is probably the best example of double-think that I have ever come across. The Bill’s title has changed but its purpose has not. To sum it up in one sentence, its purpose is to ensure that the UK leaves the European Union in a stable and orderly way.
I know full well that many of your Lordships have misgivings about various aspects of the Bill and many of those misgivings boil down to two words: parliamentary sovereignty. I have more than some sympathy, for when I was a Minister I struggled with some of the issues that the UK’s withdrawal raises, and perhaps I may focus on just two.
The first is the Henry VIII powers. I was, and remain, very wary of giving any Government Henry VIII powers but, if we are to leave the EU in an orderly way, I see the necessity for these powers so long as they have appropriate safeguards. That is why, as a Minister, I took the view that the powers should be limited and have a sunset clause, otherwise the Government would have the mother of all Henry VIII powers. No doubt they would be dubbed by the historians among us “the Elizabeth of York powers”.
Does the Bill get the balance right so that the Government have sufficient powers and Parliament sufficient scrutiny? We can and must debate that. Yesterday’s very thorough report from the Select Committee on the Constitution contains a number of points that certainly merit consideration by Ministers. However, let us not forget a simple point. If we were radically to dilute these proposed powers, the more primary legislation we might need to pass, the longer that would take and the more uncertainty we might create—more uncertainty and a greater risk of a disorderly exit. However one voted in the referendum, surely one thing that unites us is a wish for the process of our leaving to be orderly and stable.
The second conundrum is where powers lie once they have been repatriated to the UK. Here, the overriding aim must be to protect the integrity of the United Kingdom’s single market but, until the final shape of our new relationship is known, it is difficult to be completely clear about which powers currently held in the EU will lie where in the UK. This is why, as I have argued before, we must clarify the outline of the future EU-UK relationship in the current set of negotiations in Europe and we must have a transitional period during which all existing arrangements here in the UK and in our relationship with the EU remain the same. That will give us time to negotiate the details of the EU-UK relationship and we can resolve where repatriated powers should lie within the UK. We need to achieve this agreement with the EU about the transition and, crucially, the shape of the final agreement this year.
That brings me to my final point, which is also about those two words—parliamentary sovereignty. Four months ago, I asked a very simple question in this House: what is the country we wish to build once we have left the European Union? Only once we have answered this question can we properly and fully answer the second question: what agreement do we want to strike with the European Union? What do we value more—parliamentary sovereignty and control or market access and trade?
Four months on and there are still no clear answers to those basic, critical questions. All we hear day after day are conflicting, confusing voices. If this continues and Ministers cannot agree among themselves on the future relationship that the Government want, how can this Prime Minister possibly negotiate clear and precise heads of terms for the future relationship with the EU? My fear is that we will get meaningless waffle in a political declaration in October. The implementation period will not be a bridge to a clear destination; it will be a gangplank into thin air. The EU will have the initiative in the second stage of the negotiations and we will find ourselves forced to accept a deal that gives us access to EU markets without UK politicians having a meaningful say over swathes of legislation and regulation.
Some may say that this outcome would not be the end of the world. Some may say that it is inevitable. My point is this: at this pivotal moment in our history, we cannot—and must not—indulge in that very British habit of just muddling through. With under 300 working days left until we leave the European Union, we need to know the Government’s answers to these simple questions. They go to the heart of the matter: the powers of this Parliament and parliamentary sovereignty. The Government must be honest with themselves and the public about the choices we face. Then, the Prime Minister and her Cabinet must make those choices. As has been said, 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.
My Lords, it is an honour to follow the noble Lord, Lord Bridges of Headley. Far from seeming like seven years, it seemed like about six minutes; that was such a good speech. Thank you to the usual channels for making it possible for me to speak in the debate.
I do not think it is for this House to thwart, or seek to thwart, Brexit because we would have preferred a different outcome. There may come a time when opinion manifestly shifts, but now is not the time, this is not the Bill and this House is not the Chamber to make that judgment. Parliament must therefore act to give effect to the referendum. This Bill is necessary in principle to incorporate EU law into our domestic law, as the noble Lord, Lord Bridges, said. It is also necessary to ensure a proper and orderly process is followed in Parliament, to ensure that Parliament agrees the terms of the withdrawal Bill.
The necessity of the Bill is matched only by the disastrous attempt to implement both of those purposes. The Bill provides for no meaningful vote for Parliament on the withdrawal Bill. It gives the Executive unnecessarily wide powers to change our laws in ways that would be regarded as unconstitutional in any other Bill. It leaves the judges to make key decisions that should be made by the legislatures. It uses the Bill as an illegitimate means of amending the devolution settlements. I will say nothing further about the devolution settlement except that I was deeply impressed by the speech of the noble and learned Lord, Lord Hope of Craighead.
In this House, we should be willing to amend the Bill extensively so that the House of Commons may think again. From the speeches we have already heard, there appears to be widespread support on a whole range of issues. The bigger the majorities in this House and the more they are supported by Conservatives, the more likely it is that we will influence the outcome and the more likely it is that post-Brexit Britain will be better. I place particular importance on ensuring that the Bill makes provision for a meaningful vote in Parliament—meaning the Commons. In my book, a meaningful vote means a vote that in effect mandates the Government to take a particular course. There is no point in a vote that can take place only at the end of the process; the consequence of the Commons voting down the deal that the negotiators come back with is that we then have no deal, which is almost the worst outcome we could have. It must be made clear that before any deal is finalised, the Commons should get the opportunity to mandate the direction of the negotiations. By that, I mean that if the Executive wants a Canada-style deal but the Commons wants a Norway-type deal, it must be clear that the Commons view should prevail, not that of the Executive.
With every day that goes by, that becomes a more important consideration in the way the process goes. We have a Prime Minister who is home alone in No. 10, without any allies at all—as far as we can see—not willing to tell anybody what our negotiating stance is. When asked by Chancellor Merkel of Germany what the UK’s position was on the trade negotiations, she replied, “Make me an offer”. I can understand why she would not want to tell anybody what her precise bottom line was, but I would have thought that a point would be reached at some stage where she has to tell the counterparty what she actually wants from them. So we have a Prime Minister who is not able to lead and a Cabinet, some of whom appear to think they are in the film “La La Land”, engaged heavily in either cherry picking or having their cake and eating it, while the others appear to think they are—and it is good to see the noble Lord, Lord Dobbs, in his place—in “House of Cards”, where their only concern is how to manoeuvre in a forthcoming leadership arrangement.
Leadership must come from somewhere, and the only place it can come from is the Commons. If the Government know that they must get the approval of the Commons to any deal or basic framework that is introduced, it will focus their mind and make it clear that they will go to the EU only with a proposal that will get through the Commons. It will also give this country a stance that has credibility in the eyes of the 27. More and more, when you speak to people in the 27 who are engaged in the process, they say, “What is the point of dealing with a Government who have no life left in them?”. If they see that the deal definitely has to be agreed by the Commons, they will think that there is some focus of power that gives political credibility to the deal. It is very important that we look at that point. Clause 9 is the relevant provision in the Bill and it does not provide for a meaningful vote.
I mention only one other point in these short remarks. Everyone agrees that these Henry VIII powers are excessive, unnecessary and unconstitutional. I have heard many suggestions about what we should do and I support many of them, but there are two key points. First, the Bill must be amended in relation to all the Henry VIII powers so that they can be used—we need some of them—only where “necessary to make EU law work in the context of domestic law” and, secondly, where they have “only a technical effect”. Anything wider goes beyond our constitution because it requires the Executive to make significant policy choices through secondary legislation. The corollary of that not being the approach of this Government is that I have no doubt that this House would be much more willing than previously to reject secondary legislation under this Bill to ensure that there is proper use of primary legislation. If the Government choose to change the constitution, so can this House.
My Lords, I apologise that I missed the later speeches this morning because I was attending an event at which our old friend Shirley Williams was receiving an award. I found myself sitting next to Baroness Trumpington, who greatly misses the House. She assured me that, had she been here in this debate, she would have been giving this Bill hell, and I can well believe that. She encouraged me and reminded me that, in her post-Bletchley years, she spent her life trying to piece together the bits of Europe, like Lord Carrington who was quoted earlier in this debate.
Last week, we had a debate on devolution and Europe, and the noble Lord, Lord Lang of Monkton, made a shrewd point when he said that it was a bit like having a Committee stage debate before we had the Bill. I plead guilty to doing the same again today, because I want to concentrate on one issue only: the effect that the Bill has on the Scottish Parliament.
The Scottish Government were promised an amendment to the Bill in the House of Commons. That never happened. The excuse was given that Damian Green had left the Government, so there was a bit of chaos. Chaos is almost the middle name of this Bill. It was not a very good excuse. I believe that the Scottish Government have been treated rather badly throughout this whole process. In the beginning, the Joint Ministerial Committee set up a European sub-committee, which was to meet monthly and to oversee the negotiations. In fact, it met monthly until February last year, when it suddenly stopped and did not meet again until October. Again, an excuse was brought forward—that there was an election. Come on, was it an election taking eight months? That was another excuse that did not wash. My noble and learned friend Lord Wallace of Tankerness pointed out to the House that the principle of the Scotland Act of 1998 is that everything is devolved to the Scottish Parliament unless it is specifically reserved by statute in the schedules to that Act. This Bill cuts across that principle, in my view.
There is a serious problem, particularly with Clause 11. This is not just the view of the SNP in Scotland; it is the view of the Scottish Parliament as a whole. Its constitution committee said that Clause 11 of the Bill is,
“incompatible with the devolution settlement in Scotland”.
Now, the devolution settlement has worked extremely well, as the noble and learned Lord, Lord Hope, was arguing. We were debating that way back in 1997-98, when I came into the House, and very good debates they were. I think that Bill has turned out to be very satisfactory, but the genius at the heart of the devolution settlement, which was endorsed by the Scottish referendum and encapsulated in that Act, was that it gave a stable and sensible form of government. The trouble with Clause 11 is that it sweeps up the entirety of EU law and puts it beyond the powers of the devolved legislatures, and I think that is not really acceptable.
My noble friend pointed out that, when the Canadian Government were involved in the trade agreement across the Americas, they made sure that the provincial legislatures were in on the negotiations. Of course, they have a proper federal constitution and we do not, but that is still the principle that should have been adopted here. In the debate on Thursday, the noble Lord, Lord Kerr of Kinlochard, lamented that the SNP has no representation here in the House. It is now unacceptable, when the SNP forms the Government in Scotland, that they do not have anyone here in the revising chamber. That is largely their own fault, but the noble Lord, Lord Kerr, said, and I agree, that if the Burns committee report proceeds and the Government agree to the principle that future peerages are of 15 years, at that point the Scottish Government should reconsider their position and bring their voices to this Chamber. In the meantime, it is up to the rest of us to voice their concern, which is that of the Parliament as a whole and not just the SNP. The Conservative Members of the Scottish Parliament in particular fully support their constitution committee. It was a unanimous report that I quoted from a moment ago.
Earlier, the noble and learned Lord, Lord Hope, spoke much more eloquently on this subject than I do. He is quite a remarkable man, because he gets away with saying things that the rest of us would not be allowed to say. He has that air of judicial authority and scholarship. When he says that King Henry VIII did not go to Scotland and Oliver Cromwell did, it is a devastating reflection on the state of this Bill. It is not the Henry VIII powers that matter; it is the fact that Oliver Cromwell dispensed with Parliament altogether. What this Bill does is to dispense with the Scottish Parliament. That is why it is unacceptable, and that is why we must have an amendment during Committee that puts right a totally unsatisfactory Bill as it stands.
My Lords, I had been intending to talk exclusively about the impact of this Bill on the environment and climate change, but earlier the right reverend Prelate the Bishop of Leeds reminded us that the process that this Bill supports is about a broader matter than translating legislation and instrumental processes. It is about what kind of country we want this to be and what kind of Europe we want to see in the future.
I hope noble Lords will indulge me for a moment if I recount a piece of my family history. My father was a refugee from Nazi Germany, who came here in 1933 and was lucky he survived—many of his relatives did not. One individual in the family who survived, remarkably, was his sister, who survived throughout the war in Germany and still lives there. I went to see her just before Christmas and we had a conversation about Brexit. I asked, “What do you think of what our Government are doing?”. She looked at me and said, “In March 1945, my mother and I hid in the cellar of our home because there was an allied bombing raid. We came up in the morning, our house had disappeared completely, the street had vanished completely, the centre of our city had vanished completely”. She went on to describe how, in the subsequent weeks, she and her mother tried to move across Germany with no transport—no railways, no roads, no petrol, nothing. Even to get a bar of soap, she had to sell the carcass of her pet dog. She said to me, “Any Government who want to begin to take apart the structure that we put in place to prevent this happening again must be mad”.
I shall switch now from a broader issue to the rather narrow issue of environmental legislation. We are told that the Bill is about continuity. It is to enable things to operate as they did before on the day after Brexit. As noble Lords will be aware, almost all the legislation that protects our environment, including air quality, marine and freshwater quality, protection of species and habitats, waste disposal, noise pollution and soil quality, comes from the European Union. Defra estimates that there are more than 1,100 pieces of EU legislation within its ambit. At the moment, the enforcement of environmental law is overseen at European level and it is acknowledged, including by the Government, that after Brexit there will be a governance gap.
Take our beaches as an example. Under the bathing water directive, the UK originally designated fewer areas as bathing waters clean enough to bathe in than did Luxembourg. Even Blackpool beach did not make it on to the UK’s list. As a result of Commission enforcement, the UK has increased the number of bathing waters designated from 27 in 1987 to 362 today. The Institute for Government reports that some 29 of the 63 judgments—that is 46%—handed down by the ECJ on UK infringements since 2003 related to the environment. So enforcement by the European Commission and the ECJ has been crucial to our transition from the dirty man of Europe to the place that we are today.
The Government, as I say, have recognised this governance gap and are consulting on the nature of a new body to ensure that environmental standards are maintained and enforced after Brexit. Yesterday, we had a very good debate in this House in which the Minister the noble Lord, Lord Gardiner of Kimble, said that this would be a statutory body, which I think we all very much welcomed. I hope that that will be confirmed by the Minister at the end of this debate. The crucial thing for this Bill is that the new statutory body will be in place, ready to take action, immediately after Brexit. We do not want to say that it is six months or a year until it comes into place; it has to be there on the day we leave.
Other concerns need to be explored in Committee, and I do not intend to elaborate on those now. The noble Baroness, Lady Jones of Moulsecoomb, said earlier that it is not clear in the current drafting that all EU law will be fully transposed. Clause 2 saves transposed directives; Clause 3 converts regulations; and Clause 4 saves other rights and obligations if they have been recognised by case law. We need some explanation of what the implications of that are. As the noble Baroness, Lady Jones of Moulsecoomb, said, the principles of environmental law such as sustainable development, the precautionary principle and the polluter pays principle may be lost, as these are currently in the preambles; they should be retained. If they are not, future decision-making by public bodies or by government may result in weaker protection of the environment.
In closing, I turn to energy and climate change. We have our own national legislation on climate change, the Climate Change Act 2008; nevertheless, some of our energy security and decarbonisation depend on our relationship with the rest of Europe, the EU Emissions Trading Scheme and the internal energy market. As far as I can see, these are not covered by the withdrawal Bill. In fact, in the Select Committee that I sit on—excellently chaired by the noble Lord, Lord Teverson—the Energy Minister told us recently that, although we were going to leave the internal energy market,
“our top priority is to be as near as possible to the current arrangements”.
That makes you wonder whether the simplest way to achieve this is not to leave in the first place.
My Lords, it is a pleasure to follow the noble Lord, Lord Krebs. I do not, of course, agree with his conclusions.
I welcome this Bill as an important step towards leaving the EU in 14 months’ time—no more than that. It cannot be an attempt to thwart the result of the referendum. I remind some noble Lords that the British people voted to leave in a referendum with a turnout of more than 70%. They knew what they were voting for. In spite of the warnings in the propaganda leaflet sent to them by the Government a couple of months before the referendum, they still voted to leave.
The British people voted to leave in spite of the dire warnings—the warnings of disaster—wheeled out by the then Prime Minister, David Cameron; the then Chancellor; the then President of the United States, “back of the queue” Obama; the fragrant Christine Lagarde, president of the International Monetary Fund; and the Governor of the Bank of England. We were warned of the disasters that would befall us if we were rash enough to vote to leave: a stock market crash, plummeting inward investment and soaring unemployment. It turned out that those forecasts were about as accurate as a cross-eyed javelin thrower. Unemployment is at a record low. The stock market is at a record high. Industry has the fullest order books for 30 years. Inward investment remains very high, as it was before the vote.
With the gloomsters so comprehensively defeated, why do our negotiators in Brussels persist in the pre-emptive cringe approach? I do not understand it. We have a strong hand to play, but we are playing it very badly. Why are we agreeing, for example, to pay the EU any money at all to access the single market? No other country does this—not Switzerland, India or America. Why are we doing it? We are in a very strong position. We have a trade deficit with all the other major economies in the EU. Perhaps we should be charging them for access to our markets. I do not see why we should not do that, on the same basis as they are trying to charge us for access to their markets.
For example, we had a trade deficit of £26 billion with Germany in 2016 alone. Surely, this sort of deficit, which they have with us, gives us some leverage in the current negotiations. I can, however, see no sign at all of that being used, and I wonder whether we should listen to our closest ally, America, in the form of Donald “front of the line” Trump. He said, in an interview in Davos, that he would not have negotiated the way we are negotiating: he would have been much tougher. I really wish that our negotiators would listen to that and drop the pre-emptive cringe.
The referendum has happened. The decision was to leave. We decided that we did not wish to be part of a supranational regime run by a European Commission priesthood that we did not elect and cannot get rid of. We did not wish our laws to be overseen by a European Court of Justice with an entirely different legal system from ours, and we wished to remain in control of our own borders and our own immigration. Those were the three principal points in the referendum. Parliament’s duty is to implement that choice—the choice made in the referendum—and so is the Government’s. I remind the Conservative Government what happened to the Conservatives after the repeal of the Corn Laws: oblivion.
My Lords, surely the single Act of Parliament which created the largest number of delegated powers was the European Communities Act 1972. I am therefore surprised that noble Lords do not welcome the fact that the Bill brings many powers back to this Parliament.
The Prime Minister has rightly recognised the need for an implementation period of about two years. The Government prefer the term “implementation period” but others refer to it as a transition period. What is vital is that we must make serious progress towards agreeing the end state before we agree the interim measures. How can we determine what needs to be agreed for the implementation or transition period without at least knowing the broad outline of the definitive free-trade agreement that we expect to have in force at the completion of that period? Can my noble friend the Minister encourage the Government to be bolder and more confident in talking about their vision for the future of the United Kingdom in resuming its place on the world stage as a strong advocate of free trade, which is an absolute necessity in bringing about greater prosperity and the alleviation of poverty, wherever it exists?
Could we not talk more about our markets? In manufacturing, many German and French companies, and subsidiaries of both British and third-country companies operating on the continent, are concerned that their Governments are not doing enough to encourage the EU to ensure open access to the UK’s markets. Services account for more than 80% of the UK economy. The largest part of this is financial services, centred on the City of London. The City has become the world’s leading financial centre, not because we are in the EU but because of many reasons that will continue to apply after we have left the EU. The EU’s negotiators know this; we should call their bluff. If they insist on introducing impediments to free access for Europe’s companies to our capital markets, their companies and their people will suffer.
As recognised by the European Union Committee in its report published last Friday, the UK and the EU negotiators should favour an end state which allows mutual market access. Fragmentation of London’s financial markets would lead to increased costs and a deterioration of financial stability. The EU seems intent on relocating the euro-clearing activity of central counterparties to the EU. But the United States is content for dollar-clearing activity—and Japan is happy for yen clearing—to take place here. Even China seems to take pride in the increasing volume of renminbi transactions taking place in the world’s most efficient financial marketplace. The EU alone is putting political objectives ahead of economic common sense in seeking to bring about the disintegration of London’s financial markets.
London’s markets do not belong to Europe; they do not even belong to the UK. They belong to the world. We host these markets here on behalf of the world. Our regulators, the FCA, the PRA and the Bank of England, will have a commensurately greater influence in the framing of financial regulation in international bodies such as IOSCO once they are restored to the level of independent national regulators. I believe that London’s future continued success as the world’s leading financial centre depends upon our recovering the freedom to adopt a somewhat less dirigiste style of regulation, which will make our markets more attractive to investors and borrowers located in the faster growing economies of the world.
It is of course necessary, as we are often and properly reminded by the City of London Corporation and the industry representative bodies of the City, to secure early agreement of transitional arrangements to reduce the risk of business unnecessarily and pre-emptively deciding to move people and businesses to Europe.
We also need to agree a bespoke deal delivering mutual market access. We have now a position of complete convergence, so it should not be so difficult, as is often claimed. We should make it clear that we will continue to allow EU financial institutions to operate in London on the basis that they do now, in the expectation that mutual regulatory recognition will continue. As advocated by the Legatum Institute, dual regulatory co-ordination mechanisms will in any event be necessary for our future FTA.
The City of London Corporation rightly points out other areas where continued mutual recognition of standards is clearly important for both the UK and the EU. These areas include legal services and the flow of food and feed products through London’s ports. The City also recognises its need to continue to have access to talent under the terms of the future immigration Bill. It needs the most talented individuals to work not only in financial services but across the sectors, including the creative sector.
My Lords, I start with a confession—actually, two. It is a while since I have done this. Back in 1975, I made a decision to vote against Britain being part of the EEC. That decision was as wrong then as I believe Brexit is wrong now. I never thought I would end up taking part in a national debate 42 years later seeking to preserve much of what we have gained in the intervening years.
We must respect the outcome of the referendum, and our primary task now has to be to limit damage. Labour’s historic role will be to protect jobs and the economy. Others in this debate are better qualified than I am to talk about the long-term impact of leaving the EU on the UK economy, but already there are worrying signs. We should have no truck with the ready complacency of David Cameron, the PM who I believe led us to the worst post-war policy decision—barring perhaps the Suez invasion.
In the face of this, what should we—the unelected House—do with the Bill? It would be wrong to reject or emasculate it. Leaving the EU will happen. The questions are: what are the terms of our leaving and how can we mitigate the damage? We need to be on-side with the national interest, and we in this House should be mindful of our role in protecting the constitution. In truth, the Bill is an alarming, incoherent concoction in need of improvement before we send it back, amended, to the other place. We should be unafraid of that task.
The Constitution Committee has done a great service in providing noble Lords with a route map; it is one that we should follow. Much of the critique is legal and technical, not about policy, but that does not mean it is unimportant. Getting the law and its application right will have a direct impact on how post-Brexit policy is determined. For that reason, what your Lordships’ House does with the Bill is of central importance to the future prosperity of our nation. For example, if we let the Government off the hook on EU-derived rights and the European Charter of Fundamental Rights, protections on consumer law, environmental protection and workplace rights, we will have failed in our duty as a revising Chamber. If we cannot secure a properly balanced means of transposing EU law without recourse to arbitrary Henry VIII powers, we will have weakened the protection of the public and failed in our duty. If we cannot secure a transitional period based on current terms within the single market and customs union, we will harm our economy and the national interest.
Before we get attacked by the likes of Jacob Rees-Mogg or the Brexit Minister, Mr Baker, I ask them to think first and reflect on the proper role of the second Chamber. It is our patriotic duty to send large parts of the Bill back for reconsideration. Labour has rightly set out its red lines, and they are likely to be shared across the House. They will include: a meaningful vote at the end of negotiations; ensuring a role for Parliament in the event of no deal; a time-limited transition period on current terms; enhanced protection for EU-derived rights and protections; limiting the scope of Henry VIII powers; and the removal of the Government’s exit-day clause to give our negotiators flexibility. There will be other amendments on other issues. A mechanism for consideration of SIs recommends itself and comes from the Constitution Committee’s report. In that regard, I hope the noble Baroness the Leader of the House goes further than her tentative proposals this morning.
Securing the balance between the devolved Administrations’ powers and responsibilities and the duties for the UK Government as a whole will be a major test, as will be ensuring that the EU border with Northern Ireland is frictionless while it protects the rest of our economy. These are not trifling issues; they are matters our Government have not handled well. We should remind ourselves just how close they came to falling at the first hurdle over the border issue. Being in hock to a small party is never a wise course.
Turning again to the recommendations in the Constitution Committee’s report, my untutored eye concluded that at least 13 are a basis for amendments. One in particular commends itself: that which proposes that all retained direct EU law should have the status of domestic primary legislation. This would secure legal continuity and certainty post Brexit, as my noble friend Lady Taylor explained this morning.
I have three final three points. Though not a policy issue in this Bill, I and other noble Lords will want a coherent explanation of how frictionless trade can be achieved without membership of the customs union or a single market. Without it, our economy will be damaged, as reports from the Brexit department yesterday finally admitted. I also hope to probe and push the issue of refugees during the course of this Bill. The EU may not have covered itself in glory on this, but it has had a strategy, and without one I fear for the future and safety of young unaccompanied children. In 2016, 30,000 of them arrived in Europe. Without effective access to an asylum system or legal routes of transfer, such as Dubs and Dublin III, they will continue to be alone and unprotected. We need a humanitarian structure that protects these most vulnerable citizens. The Government should set out exactly how, in a post-Brexit world, this will work. To date, they have singularly failed to do so, to their shame, and our reputation as a compassionate nation has been damaged.
I am no fan of referendums. In my view you should use them sparingly. I take the view that if you do not know the answer to the question, you do not ask the question. That was Cameron’s historic blunder. The Motion moved by my noble friend Lord Adonis invites us to support one on the final deal. Like our Front Bench, I am not minded to support the Motion, and I suspect others will similarly resist the temptation but, like others, I think it unwise to rule one out.
The Bill, as many have observed, is mostly about process, not policy, and thus something of a Brexit sideshow, but it is important. The Constitution Committee says that it is fundamentally flawed in multiple ways. It can be improved and become a vehicle to restate common values which the EU at its best has achieved. This is how I believe we as a House should approach the Bill. In the absence of a Government with a strategy even for their own legislation, it is up to Parliament to provide clarity and a sense of purpose, and to bring some cohesion to what is before it. That is our historic task.
My Lords, not for the first time I shall express a minority viewpoint. I believe that there will be no deal. The excellent report by the EU Select Committee Brexit: Deal or no Deal pointed out the devastating consequences of no deal but did not address its likelihood—and if it is even a possibility this Bill requires major amendment.
Why is no deal likely? The Government envisage three stages of Brexit. Stage 1 is agreeing a framework for a new relationship with the 27 before the Article 50 leaving date. Stage 2 is, as part of a transition agreement lasting two years, a standstill period during which we negotiate the details of the new relationship and meanwhile preserve the status quo. Stage 3 is an implementation period to allow business to adapt to the new relationship.
At the moment, the Cabinet and the Tory party are hopelessly divided about the nature of the new relationship they seek—and if they fail to agree there will just be no deal. They are also divided about the meaning of the status quo. If it means staying in the customs union and the single market and accepting the obligations of both, it means paying our dues and accepting the jurisdiction of the European Court of Justice and any regulations and directives made by the EU. As two unlikely allies have pointed out, Britain would become a vassal state. The noble Lord, Lord Kerr, was the first to coin the phrase, which has now been echoed by Jacob Rees-Mogg.
But the alternative touted for a soft Brexit of a new kind of customs union with a frictionless border is not regarded as credible by anyone outside Britain, while access to the single market without its obligations—a kind of bespoke new single market—will be unacceptable to the EU. Mrs Merkel and many others have often pointed this out, but the Government have not heard them.
Moreover, since the Government have ruled out even temporary membership of the customs union, the problem of a hard Irish border, fudged last December, remains insoluble. Since the 26 have promised full support for Ireland, this issue alone will mean no agreement—and no agreement with the EU on the framework means no deal. Furthermore, the transition agreement with the EU will be far more complicated than the Government envisage. A period of two years is unlikely to prove long enough—and, again, if it is not agreed before the leaving date there will be no deal.
The crucial question, if there is no deal, is when the meaningful vote by Parliament will take place and what the choice on offer will be. As for when, it must be before October—before we leave—as it must allow time for approval by the European Parliaments. The choice cannot be what the Government seem to envisage: either accepting or rejecting no deal. Accepting means leaving; rejecting cannot mean telling the Government to go back and renegotiate. That would be wholly unrealistic. The only real alternative would be either withdrawing Article 50 or holding a new referendum, when it would this time be clear what Brexit actually means. As the noble Lord, Lord Butler, observed earlier, we will need an amendment to the Bill to ensure that the choice of a new referendum is part of a meaningful vote by Parliament.
My Lords, I thank the Leader of the House for the thoughtful way in which she introduced the debate and the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Newby, for having achieved an important degree of consensus on some important principles. They are that it is of course absolutely essential, and the duty of the your Lordships’ House, to scrutinise very thoroughly the legislation before us, which will have an ongoing and fundamental impact on the rights and lives of our fellow citizens for many generations to come, but at the same time that your Lordships’ House should not, and probably will not, use the Bill to in any way undermine the authority and primacy of the House of Commons. We have the right of course to revise and to ask the other place to think again, both about issues that it has already considered and about the many issues in the Bill that it has not properly scrutinised, but it would be completely wrong ultimately to frustrate the will of the other place in any way.
In the context of those simple principles, I will touch on two areas, although there are of course many that will require important scrutiny. The first deals with regulations that are important to our national interest—in this regard, regulations that relate to the question of clinical trials. In so doing, I declare my interests as a professor of surgery at University College London, director of the Thrombosis Research Institute and an active biomedical researcher.
The current clinical trials directive, which has been transposed into domestic legislation, has been much criticised because it is considered to have thwarted and undermined in many ways the ability of our country to perform clinical research at the most efficient level. As a result, quite rightly, new clinical trials regulation has been considered and developed. Our own research community made substantial contributions to the development of that regulation, and it is a much better piece of legislation. That is recognised to be a good thing. It was due to be adopted across the European Union in October 2018, but there has been a delay to its adoption and it will now not be applied until later, in 2019.
As a result, the legislation that deals with the conduct of clinical trials, which is vital to delivering healthcare in our country and to our life sciences industry, will be retained legislation with the current directive. As far as I can see, there is no mechanism for a regulation that has been agreed but not yet applied across the European Union on the day of exit to be dealt with under the Bill.
I therefore ask Her Majesty’s Government how they will deal with that question, which is of considerable importance. There may be other areas where we, in our national interest, have agreed or will in the coming months agree regulations that will not be applied by the Union by the time of our exit from the European Union. As far as I can see, the Bill does not deal with that.
Clause 6(2) deals with the regard that courts and tribunals should give to the development of European law which, at the time of exit, has become retained European law but which is further developed thereafter by the European Court of Justice. Here I declare my interest as chairman of the Judicial Appointments Commission. The Bill proposes that the courts and tribunals do not have to take account of the further development of law beyond the time of exit, but they may do so if they think it appropriate. That seems a confusing and dangerous proposition.
Inevitably, and quite rightly, the European Court of Justice will continue to develop its law with the interests of the European Union, both political and economic, firmly in mind. Those issues may be quite different to our national interest, but the Bill proposes to leave the judiciary to make the decision about whether they should pay attention to this matter and what weight they should give to it—that is, the development of law beyond the time of exit from the European Union. As your Lordships’ Constitution Committee identified, that risks drawing the judiciary into areas of political controversy. Parliament has rightly taken the view that there should be a separation of powers, that Parliament is sovereign, that Parliament is responsible for matters of political policy and for the establishment of statute and that it is for the courts thereafter to interpret the law and apply it.
It therefore seems wholly counterintuitive for this Parliament to take the judiciary—an important part of our constitution—to a place where it may be drawn into political controversy, as a result of which there may be a loss of confidence in our independent judiciary and a loss of morale. That would be a terrible consequence of departure from the European Union and, as the Constitution Committee rightly identified, it is a matter that needs to be carefully scrutinised. The committee identified a potential solution—there may be others—but clearly it is a matter that your Lordships’ House will need to consider in detail and potentially ask the other place to consider once again its position on this matter.
My Lords, like the noble and learned Lord, Lord Falconer, I am grateful for the opportunity to speak in this debate after an apparent mishap or two with the speakers list.
I have two general points to make. The first is about the nature of the Bill. I agree with the noble Baroness the Leader of the Opposition who, at the start of the debate, made the point that the Bill is poorly named, which is perhaps why it has attracted measures of criticism and mischief elsewhere for what is largely a technical Bill which does not deserve that kind of treatment. I would have called it the “Transposition and Rehabilitation of Legislation Bill”—that might be suitably dull and boring to head off some of the worst troublemakers. It is a technical Bill, and I suggest that it would be quite wrong for this House to treat it either as a proxy for the battle over our departure terms from the EU or even for whether we should depart at all.
Departure from the European Union was given effect by the invoking of Article 50 last March, approved by Parliament. That followed a referendum, also approved by Parliament; and afterwards, all parties undertook to support the result. Much is read into what the electorate might have meant by their vote, but the question they were asked was not, “Shall we leave if we cannot get a good deal?”, or, “Shall we remain unless we can stay in the single market?”. The question was simple and unqualified: “Leave or remain?”. And the electorate chose to leave.
Despite an aversion to many aspects of the European Union, I had voted remain on economic grounds. But once the electorate delivered the verdict that we, in our wisdom, had devolved to them, I took the view that I am glad to hear reflected elsewhere in the House today—that we must accept it and implement it, with the best deal we can achieve. In that context, I particularly welcome what my noble friend Lord Bridges of Headley said—that the negotiations need to be got a grip of, and a clear way forward mapped out, as soon as possible.
This Bill—complex in nature, constitutionally important and administratively essential—is a consequence of the referendum decision. I support it, not as the trigger for our departure, nor to affect future relationships with Europe, but simply to sort out the legislative consequences of departing, to protect the rule of law in this country, and to seek legal certainty and continuity from the moment we leave the European Union by bringing home all the legislative measures that have accumulated there over 46 years. Without it, there would be chaos.
My second point concerns the drafting of the Bill and its implications for the balance of power between Parliament and the Executive. The Constitution Committee has—uniquely, I believe—produced no fewer than three reports on the Bill. The first—over a year ago, when I had the honour to chair the committee—was produced before the Bill had even been published, such was our concern about what its terms might be. The latter two were under the admirable chairmanship of my successor, the noble Baroness, Lady Taylor of Bolton. The latest report, published yesterday, has been forced to conclude that the Bill is “fundamentally flawed” in multiple ways. If that is so, we are clearly right to be concerned, and to remain so.
Now is not the time for detail, but we recognised at the outset that—unavoidably, given the scope, scale and complexity of the task—the Government would need additional delegated powers over secondary legislation. We also listed a broad range of protective constraints that would be vital to balance these. Some have been secured, but the noble Baroness, Lady Taylor, has listed an impressive list of what still needs to be done. I continue to support her approach and that of her committee on this important matter.
On the devolution issues, some of which were debated in the House last week, I hope the Government will listen very closely to what the noble and learned Lord, Lord Hope of Craighead, said. His analysis, surely, cannot be bettered. Essential though it is that the Bill passes into law, I conclude that, should it be used also as a means for the Executive to gain permanent new legislative powers at the expense of Parliament, that would be a dire price to pay, in the long run, for the sake of restoring what one may soon be able fondly to refer to once more as “the law of the land”.
My Lords, I shall today discuss some of the implications of Brexit on children and families. I define children as being up to the age of 18, based on a number of agreed conventions. Laws relating to families and children are a vital part of our justice system. They vary in the devolved nations but form a structure which has been important in protecting children and resolving family disputes.
A paper by the law firm Resolution, prepared with the Family Law Bar Association, points out that there are approximately 140,000 international divorces and 1,800 cases of child abduction in the EU each year. Their opinion is that the European Union (Withdrawal) Bill could create problems for tens of thousands of people. We must place a requirement on the Government to report to Parliament on how the rights afforded by EU family law will continue to exist in UK family law and how progress is being made. Clause 6 must be amended to retain the ability to refer to the CJEU in family law on the basis of reciprocity.
I looked recently at the debate on the EU Committee report Brexit: Justice for Families, Individuals and Businesses?, which was held in December last year. The committee was chaired by my noble friend Lady Kennedy of The Shaws, who spoke of the civil justice co-operation between European states. As she said, it works, yet we seem to know little about the Government’s thinking on such complex matters.
The noble Baroness, Lady Shackleton, from the Conservative Benches, spoke of,
“a recipe for confusion, expense and uncertainty, particularly in family law”,
“the UK’s family law system post Brexit is, to put it mildly, disappointing”.—[Official Report, 20/12/17; cols. 2122-23.]
The noble Baroness, a respected practitioner in this field, gave telling examples of such confusion. I am horrified to think that disputes over the custody of children, residence rights and safeguarding issues are likely to become more complex after Brexit. Children deserve better. They often find themselves innocent victims of situations they have not created.
Coalitions of those concerned for children’s rights in the UK are putting forward challenging demands for clear and consistent explanations of what the scenario will look like after Brexit. I am grateful to them for their advice and support. Measures in Wales, Scotland and Northern Ireland may well be affected, as much of EU law affecting children is likely to be repealed or amended through the use of delegated powers. A recent report by a law firm for the Children’s Rights Alliance and the Children’s Law Centre in Northern Ireland analyses clinically the whole scenario, including education and the Good Friday agreement. It makes uncomfortable reading.
Our domestic laws, embedded in the Children Acts 1989 and 2004 and the not yet in force Children and Social Work Act 2017 are, of course, welcome, but they do not cover the full range of children’s entitlements in EU law. The EU Charter of Fundamental Rights, the EU Convention on Human Rights, and the UN Convention on the Rights of the Child, ratified by the UK, focus on adherence to standards for children’s rights. The Minister may say that these rights will be protected, but where will be the statutory provision requiring respect for children’s rights in lawmaking? 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.
The Children’s Rights Alliance makes a powerful argument for retaining the Charter of Fundamental Rights, due to be removed in Clause 5 of the Bill. Some charter rights—for example, those relating to children—have no equivalent protection in UK law. The noble Baroness, Lady Evans, referred to the charter in her opening speech this morning and pointed to the Government’s right-by-right analysis to justify their position. What she did not refer to was the Joint Committee on Human Rights’ scrutiny which, in six paragraphs, refers to uncertainty that is likely to undermine rights, including children’s rights under the UNCRC.
In short, laws to protect children and deliver transparent justice for families must be preserved. It concerns me that I see too little emphasis from the Government on that aspect of Brexit. I hope that legislation for children and families will feature in our future deliberations.
My Lords, I agree with those who say that this Bill is not about whether we should leave the EU or stay in it—it is about how to ensure against a legal void when we leave. On that basis, it is a Bill that must, of course, pass. The question is in what form it should leave this House and return to the Commons. As has been widely pointed out, it represents an unprecedented arrogation of power to the Executive. Our duty, therefore, is to do as much as we can to ensure that the arrangements in place will be those that ensure that the powers are exercised in a responsible and democratic fashion, in accordance with parliamentary sovereignty and the rights of the devolved Administrations. It will be for the House of Commons to take the final decisions, but we must do what we can to lay before it a Bill that meets those criteria.
This means that the Bill requires substantial revision. I hope very much that the Government will take into account the serious concerns raised by the Constitution Committee and others with parliamentary and constitutional experience. I was encouraged by what my noble friend the Leader of the House had to say on that subject. I hope very much that noble Lords on the other Front Bench will pay very serious attention to what is said and not resort to any accusations of sabotage or anything of that nature. For my part, I hope that I will in general support Ministers. However, I will feel able to do so only if I am convinced by the merits of the case they put forward and that they have taken into account the arguments others have made, even if they have not accepted them.
I hope that the Government will understand another concern that I have. Our debates take place against a background of not only negotiations in Brussels but a struggle between different factions in the Cabinet and within the Conservative Party. Indeed, it is very hard to know at times what official policy is, let alone in what direction it is heading. This uncertainty is bound to influence the way in which—I was going to say “one” but I should say “I”—I respond to ministerial arguments on the Bill and to the way in which Ministers deal with amendments that are put forward. That is true of not just those clauses and amendments relating to our domestic law; it is even more true of those relating to our future relationship with the European Union. On that question I would like to make two points in the limited time available.
First, we must aim to strike a balance between the least possible economic and trading disruption in the short term and scope for regulatory divergence in the long term. That sentence is easy to say but the objective is extremely difficult to reach. As time progresses, the EU will develop differently from how it would have done if we were still members. We need to ensure that while remaining closely aligned to it, we are able to adopt policies that reflect our own views and priorities.
My second point is directed at those to whom the role and scope of the European Court of Justice and European law has become neuralgic. I ask them to consider the extent to which the United States listing requirements and sanctions regulations impinge on the freedom of action and practices of British companies and citizens. We live in a world in which a middle-sized economic power is inevitably constrained by the extraterritorial reach of the larger powers. If we are to prosper and have a successful trading and commercial relationship with the rest of the world, we are going to have to accept that reality. We will certainly have to accept it in any deal we might do with the United States. We need to accept it in relation to the European Union and in due course we will find that we have to accept it in relation to China.
I end on a point which others have made: if we are to secure a good deal—or, indeed, any deal—in Brussels, the Cabinet must end its internecine warfare and Cabinet Ministers must curb their personal ambitions. They must rally behind the Prime Minister and get stuck into the job in hand.
My Lords, the Bill seeks to make provision in connection with the withdrawal from the EU of the three nations, England, Wales and Scotland, and part of the island of Ireland, if that can somehow be done without having a hard border across that island between the UK and the EU. The Bill is a stab in the dark. None of the terms of withdrawal is yet known. All we can sensibly do at this stage is to make provision for how decisions will be made and by whom, and when the terms are known their acceptability or otherwise must be judged. Will it be by Ministers, without accountability? Will it be by Parliament, by way of a No. 2 Bill? Will it be by a referendum? Or will it be some combination of the foregoing?
The fact is that the whole Brexit process is a mess. It needs straightening out. There is no case for a second referendum, if by that is meant a return to the referendum we have already had. There is every case, if one is ever going to have referendums at all, for another referendum, at the appropriate time, in the circumstances then prevailing, on an altogether different question: namely, what to do once the terms are known. The past referendum is spent. Voters have died, and others have come of age.
There were four options the day after the previous referendum. The Government adopted none of them. Total confusion reigned, it has reigned since and it reigns today. One option was to accept that it was not a binding referendum, that between the constituent parts of the UK the result was a tie, that overall the result was close, and that Parliament should decide, doing no less and no more than taking due account of the referendum outcome.
The second option was to interpret the outcome of the referendum and the closeness of the result as meaning not, at one end of the spectrum, remain, nor, at the other end of the spectrum, a hard Brexit, but down the middle a soft Brexit, behind which there might develop some degree of accommodation, rather than heightening the polarisation. But neither the referendum itself nor the Government’s reaction to it provided any clarity as to what Brexit was supposed to mean.
Thirdly, Brexit could have meant Brexit. That, presumably, is what Brexiteers thought that they were voting for. However, they have been betrayed ever since the morning after the referendum. By “Brexit” they no doubt meant taking back control, informing the EU, as of then, that we were out of the EU. Of course, there would be matters, financial and otherwise, to be sorted out after departure, but there would be no delay at all in departure itself and taking back so-called control forthwith.
The fourth option was a watered-down version of the third. On the day after the referendum, or, if you prefer, the following Monday, two years’ notice of withdrawal would be given. However, even that was not done. First one Prime Minister, then another, dithered, and then there was talk about whether even two years from a delayed starting point would produce finality.
So confusion piled upon confusion from the word go, and it continues. The Government cannot be entrusted with the process either of determining whether Brexit should go ahead on the final terms or, if it is ultimately to be implemented in one way or another, of how that is to be done. There must be democratic accountability, above all at the crucial stage yet to come. The present Bill is only half a Bill. It professes to repeal the 1972 Act but seeks to do so before knowing more than half the picture.
My Lords, as has been said, this is an extremely complex and legalistic Bill. While I may be able to cope with the complex, the legal ramifications are beyond me and are much better left to those who have had the necessary training and experience. Nevertheless, the Bill and all that it stands for will have huge implications for people in what was the United Kingdom. Many are extremely frustrated at how long it is taking to extricate the country from what they see as the “clutches of Europe”. Others are extremely apprehensive about what their future will be in a stand-alone island.
Today’s debate is important, as it sets the tone for the debate to take place during Committee and Report, when those here today will drill down into the detail. The Bill seeks, as the Leader of the House so eloquently set out, to ensure that our laws under the EU are transposed into UK law at the point in March 2019 when the country no longer has EU membership; it seeks, that is, to align UK law with that which pertains before March 2019. There is a great deal of disquiet about exactly what this will mean and how it will affect businesses in the agri-food sector.
Agriculture in 2015, was 1.4% of the GVA in England, 2.7% in the south-west and Scotland, and 4.8% in Wales. But—and it is a big but—it represented 70% of the land use across the UK. Food growth feeds into food production. Food supply is one of the 13 critical national infrastructure sectors. In 2015, the food chain relied on imports of £40.3 billion, of which £28.4 billion came from the EU. In terms of food manufacture, 25% of employees were born outside the UK.
The current subsectors of land use are: agritech, which is very important for new and innovative ways of both growing and harvesting crops; plant breeding, another area where investment brings huge returns; and forestry. According to the 2014 VAT statistics—goodness know why there are not more up-to-date statistics—there are 3,685 forestry businesses, 555 sawmills, 130 wood-based panel businesses and 230 pulp and paper businesses. Of the private owners, 90% have holdings of less than 10 hectares. This equates to 30% of privately owned forests. Yesterday’s debate on the 25-year environment plan showed that forests are essential to the quality of the air we breathe. We must preserve these businesses after the exit from the EU.
Post Brexit, what will happen to the National Office of Animal Health—aptly named NOAH? Veterinary medicines are essential. As with food production and safety, the UK needs access to developments in animal welfare and medical advances in order to ensure healthy crops and livestock. Currently, EU rules protect livestock from foot and mouth, blue tongue, avian flu and the Asian longhorn beetle. These diseases have a damaging and long-lasting effect on farmers. EU rules ensure there is immediate cessation of trade from infected areas, and swift resumption once appropriate controls are in place. Farmers and growers will wish to have the security of such controls post Brexit.
Although agriculture is vital, many will point out that food manufacturing, wholesaling, retailing and non-residential catering produce 10 times the GVA. However, without a sustainable, vibrant agricultural base, will food manufacturers increasingly have to import from all over the world? Our fishermen currently land cod in UK ports, where it is sent to China for filleting; China then sends it back to the UK for breading. What total nonsense is this? No doubt it is then served up in the restaurants in and around the House.
We live on an island with brilliant coastlines and countryside. Ireland has a similarly vibrant fishing industry which needs protecting. As we all know, fish are not respecters of borders—how can they be? I look forward to both the agriculture and the fisheries bills coming forward later this year. In the meantime, I have flagged up my concerns about how this Bill will align our laws in reality and how important it is to amend it to make it fit for purpose.
My Lords, Professor Sir David Eastwood, the vice-chancellor of the University of Birmingham, where I am proud to be chancellor, wrote an article yesterday, entitled “Trump and Brexit have triggered two deep constitutional crises”. “Two years ago”, he says,
“a Trump presidency and a vote for Brexit were considered all but unthinkable. Now, two of the world’s oldest democracies are struggling to live with them, and their struggles are even more profound than they seem”.
He goes on to say that basically, since the Reformation, Parliament has always been sovereign and until the Brexit vote the broad parameters of the constitution, according to Walter Bagehot in the 1860s, have prevailed. When we have had referenda in the past, on the whole they have reflected the will of Parliament. However, David Cameron decided on this referendum and, for the first time, we had a Prime Minister and a country in turmoil, with Parliament—the vast majority of MPs and Members of this place—wanting to remain before the referendum and then a narrow result. Now, politics is on hold until Brexit is determined. Both parties are beholden to their more extreme wings, according to Professor David Eastwood, and the machinery of government is overheating and struggling to shape the Brexit deal.
Is this going to continue? The Government have put down the red lines of leaving the single market and the customs union. The EU has made the situation very clear. Yesterday, it said, “If you want a transition period, you can have it but you have to adhere to the free movement of people, you have to keep paying money in, and you have to keep having EU regulations and EU law”. So what deal will the Government be able to negotiate on that basis? Today, BuzzFeed News is reporting on the leaked government analysis of Brexit that says that Britain will be worse off in every scenario. That analysis looked at three scenarios: deal, no deal and a soft Brexit. In each case, Britain will be far worse off in every area. It says that the biggest negative is the UK’s decision to leave both the customs union and the single market.
We have had 3 million people from the European Union working here. In phase 1 of the negotiations it was said that they would be protected, but what about the future? They make up less than 5% of this country’s population. They are not a burden on this country. Without them, we would have an acute labour shortage, so we should be grateful to them.
I openly admit that I am a Eurosceptic in many ways. I dislike the European Parliament, I do not know who my MEPs are—I do not think that many of your Lordships do—and there is no accountability or responsibility. I think that the euro was a huge mistake—thank God we did not join it. I made a mistake with Schengen: I thought that we should have been a member, but now thankfully, from a security point of view, we are not. So we will never have a “United States of Europe”.
I have never been one for further European integration. We signed out of that. The EU is nowhere near perfect. It has huge faults but, looking at it on the whole, on balance we have done well out of it. We have had the highest cumulative GDP growth rate of any nation, including Germany—62%—since being a member of the EU. However, the sad thing is that even the OBR in the Budget has just said that, looking ahead, we will have a growth rate of less than 2% a year for five years—the lowest ever level.
We are the highest recipient of inward investment in Europe but, now, the Government and the Brexiteers are talking about going global. What is this “going global” nonsense? Fifty per cent of our trade is with the European Union. Another 20% on top of that is through the free trade agreements we have through the European Union, including, now, with Japan. That leaves 30%. As a businessman, am I going to give up 70% for 30%—and a 30% that I may never get? India and the Commonwealth account for less than 10% of our trade. Canada has a free trade deal with the EU but the EU accounts for only 10% of Canada’s trade. Its biggest trading partner is the United States—next door to it. India has nine free trade deals with countries around the world but not one is a western country. And what about the £8 billion that we have paid into the EU? I would pay that for the peace that we have had over the last few decades, including through NATO. As for sovereignty and taking back control, what a lot of nonsense. The laws that affect us in our day-to-day life are not the 20,000 regulations that the noble Lord, Lord Pearson, spoke about but the ones that we make here in this House every day.
I turn to this European Union (Withdrawal) Bill—or great repeal Bill, or whatever it is called. In the debate that we had last week on devolution, I challenged the Minister to explain how we are going to deal with the Northern Ireland situation. He did not have an answer. Phase 1 has just kicked the can down the road. Scotland will say, “We want to be treated on the same terms”. Can the Minister tell me how we are going to deal with Clause 11, to which the noble and learned Lord, Lord Hope, referred?
By the way, at the time of the referendum UKIP got 12.5% of the vote. Today, the figure is 1.8%, and let us not talk about its leader. What really upsets me is that Brexit has damaged our standing in the world and I see this all the time. I was with the Prime Minister of India earlier this month and I have seen India’s reaction to Brexit. We were flying before the referendum; now, look at Davos, where we were overshadowed by Macron and Trump. The whole world, except for Trump, thinks that we should remain in the EU.
In conclusion, virtually every speech today has made references to “when we leave the European Union” and “after Brexit”. Steve Jobs founded the most successful company the world has ever known—Apple. He said that changing your mind is a sign of intelligence. Keynes said:
“When the facts change, I change my mind. What do you do, sir?”
Even David Davis said:
“If a democracy cannot change its mind, it ceases to be a democracy”.
We have Juncker and Barnier—everyone—saying, “Stay on. We would welcome you staying on”. Even Farage has now spoken about a second referendum. Boris Johnson has said that there is now a danger that Brexit will not take place.
My message is this: we have to go through the motions of this Bill. We have to go through whatever we have to go through, but in a normal democracy you get a chance every five years to change your mind. We are not getting that chance, and in the two years that have already passed since the referendum was called, a lot has changed. We face many challenges: the NHS, our security, our police forces, our Armed Forces, our Army, which would not fill Wembley Stadium, our Navy and our entrepreneurship—fewer companies started last year than the year before. That is what we have to deal with, not this wretched referendum. We need to give the British people the chance to have their say, with all the facts—we can call it a second referendum; we can call it referendum part two—and Parliament must have the final say before any deal is passed on to the European Union. Will the Minister confirm that Parliament will have the final say?
Finally, at the Harvard Business School— of which I am proud to be an alumnus—I talked to Dr Deepak Malhotra, a world expert in negotiations. He has written an excellent paper on Brexit. He told me to read a book about the build-up of the First World War. He said, “Reading that book is like watching a train crash in slow motion. Karan, that is what Brexit is: a train crash in slow motion”. It is not too late to stop that train crash.
My Lords, this is not the Bill that enables us to leave the European Union. It is the Bill that makes sure the law works when we do. Britain voted decisively in 2016 to leave the EU. Both Houses of Parliament then voted to leave the EU. Both main parties stood in the general election on a manifesto of leaving the EU, while the Liberal Democrats and Scottish nationalists, who stood on the opposite promise, lost votes and seats.
Now, the elected House of Commons has sent us this Bill almost unamended. That does not mean we cannot scrutinise and amend it, but it does mean that trying to wreck it, under the pretence of amending it, is not acceptable. If, in this gilded, crimson echo chamber of remain, this neo-Jacobite hold-out for the euro-king across the water, we indulge in wrecking this Bill, we will not stop Brexit—but we might hurt Britain. The public reaction would rightly be severe. In the part of the world I come from, in Ashington, Blyth and Cramlington, they will say—I paraphrase—“How dare that unelected panoply of panjandrums and pampered popinjays think they know better?”.
I look around this Chamber and, among those with genuine concerns about the Bill—many of whom will have listened attentively to my noble friend the Leader and her careful concessions on the SLSC and affirmative procedure—I also see people pretending to worry about democracy while trying to undermine it and pretending to want the best for the country while talking down Britain. I see people who, unlike David Cameron, refuse to admit that,
“Brexit has turned out less badly than we first thought”.
That is a quote.
That is what David Cameron said. Remember what the Treasury forecast said in the event of a leave vote. These were its exact words:
“A vote to leave would represent an immediate and profound shock to our economy. That shock would push our economy into a recession and lead to an increase in unemployment of around 500,000, GDP would be 3.6% smaller, average real wages would be lower, inflation higher, sterling weaker, house prices would be hit and public borrowing would rise compared with a vote to remain”.
That was not its worst-case scenario. Instead, we have falling unemployment, record employment, strong consumer confidence, robust GDP growth, higher real wages, modest inflation, stable house prices, booming inward investment, thriving tourism, a buoyant stock market and even sterling is back above $1.40—not far off its pre-referendum level, more’s the pity.
That is a clean sweep of failed predictions and the Treasury, in the leaked documents that we have seen today, has barely changed its models.
In August 2016, the Bank of England forecast that exports in 2017 would be down by 0.5%, despite the devaluation of sterling. In fact, they were up 8.3% year on year. Here are a few headlines from just this month alone:
“Exports put UK factories on their best run for 20 years”;
“Freight volumes through the Port of Dover have reached record levels for the fifth consecutive year”;
“UK tech sector enjoys record investment in 2017 despite Brexit”;
“UK services grow faster than forecast despite growing Brexit concern”;
“British universities boast record number of international student admissions”;
and, for the first time ever, the UK has topped the Forbes annual survey of the best countries for business.
To those who say things could have been even better, I reply that I am amazed we have not slowed more. Despite a dire dirge of doom from the diehards that people should put their heads between their legs and kiss their fundaments goodbye, British consumers and producers just keep rolling along. Good for them. The noble Lord, Lord O’Neill, made the sensible point that Brexit is probably not the most important thing happening. “If that’s the worst that Brexit will deliver”, he said, “I wouldn’t worry about it”.
Talk to businessmen and they are more concerned about the fourth industrial revolution, and the opportunities and threats that it brings—artificial intelligence, data processing and gene editing. I have just come from the inaugural meeting of the APPG on Blockchain. We face a thrilling century in a vibrant world. We can face it from behind the protectionist tariff walls and harmonised regulatory veils of the EU—where sluggish legislation is shaped by £1.5 billion of crony capitalist lobbying a year—or we can face it openly, adopting global standards and taking decisions that favour innovation rather than retard it. That does not mean deregulation; it means better regulation. To get there, we need as a simple exercise of democratic action, to pass this Bill, which neither gold-plates nor waters down anything.
To those noble Lords who say that the Government will get too much executive power here or there in the undergrowth of the Bill: I will listen to their arguments. I have some sympathy with them, though I wonder why they often expressed so little concern at the way EU laws were imposed on us in the biggest Henry VIII power grab of all. However, I urge them to listen to what the Government are saying in concession to these points. Some of the accusations of incoherence from this side of the House do, I admit, have force. But it is a bit rich to be lectured on incoherence by the Labour Party.
My Lords, I am really glad that I did not have to follow the rousing and excellent speech by the noble Lord, Lord Bilimoria. It would not have been easy. Instead, I have the pleasure of responding to the alliterative rabble-rousing rant of the noble Viscount, Lord Ridley. I must remind him that we are still in the European Union, so all that he started by saying is entirely irrelevant. He and a number of Members, including the noble Lord, Lord Tugendhat, said that the Bill is nothing to do with whether or not we leave. With respect to them, the Bill assumes that we are leaving, so it is relevant. I make no apology for restating what I have said before. I do not accept that in a parliamentary democracy an advisory referendum is binding on Parliament and the Government—or, as the Prime Minister said, an instruction to Government. I thought I was in a minority of one in that view until I heard the magnificent speech of the noble Lord, Lord Higgins. It was terrific, so now there are two of us. There may be more. Any advance on two? Three, four—we are doing well. The numbers are growing.
Those who will be most affected by our exit did not have a vote. The 16 and 17 year-olds, who had a vote in the Scottish referendum, were not allowed a vote in the EU referendum. They would be able to vote now: they are 18. European Union citizens were not allowed to vote yet they pay their taxes and have been for years. What happened to no taxation without representation? They should have had a vote but did not in that flawed referendum that is supposed to be binding on us.
Before I continue on that theme, I want to say a word about Clause 11. I agree with all my Scottish colleagues, from different parties and none, about the need to deal with the concerns of the devolved Administrations in Clause 11. Along with the noble Lord, Lord Wigley, I shall table an amendment that will ensure the approval of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly by a Motion of legislative consent. It will make it mandatory that this cannot go through until these devolved Parliaments agree.
Returning to the theme, it has been 19 months since the referendum and what has happened? Almost nothing. There have been almost no agreements. How long do we have left? The clock is ticking very fast. There are only 13 months left. We have had confusion, uncertainty and concern. Not just Gibraltar, but other overseas territories have been in touch with me about their concerns. Northern Ireland has this astonishing situation whereby the Democratic Unionists may agree something that could end with a united Ireland, if things go wrong with this whole operation. We have had concern expressed by the arts sector, the media, universities and the City of London. Nurses and doctors have been leaving. A leaked document from the Department for Exiting the European Union says that growth will be 5% lower if we leave—not when we leave—unless we have a bespoke deal. What is a bespoke deal? I do not trust Dr Liam Fox to get us anything as wonderful as a bespoke deal.
As we saw again today, Brexit is dominating our discussions and our Oral Questions. It is dominating what the Government are doing. Justice, the health service and education are not getting the consideration that they deserve. How do we extricate ourselves from a looming disaster, this cliff edge? Last night, I went to the Speaker’s Lecture and heard Kenneth Clarke once again give a brilliant demolition of Brexit, but sadly he stopped short of wanting to scupper it, which was very disappointing. Too many remainers are throwing in the towel. All the people who really understand it say the rush towards Brexit will be disastrous, yet some of them are still rushing towards it. It makes lemmings look cautious by comparison.
There is a mechanism by which we could save ourselves. I believe in parliamentary democracy, and Parliament could do it in that meaningful vote. If it is argued—it is an argument—that we have had one referendum and it can be overruled only by another referendum, I would go along with that. It would not be a second referendum, incidentally; it would be a third. We had one in 1975, with a two-thirds majority in favour of staying in the European Union. I say to the noble Viscount, Lord Ridley: that was a huge majority, not what we had in the last referendum. This would be the first referendum where we knew exactly what was involved and when we could decide on either the deal that the Government agree—if they manage to get one—or the status quo. That status quo would be continued membership of the European Union. There is a real choice and we would understand it. We should not be leaving Europe; we could, and should, be leading in Europe.
My Lords, way back in the middle of the last century, I was an active member of the European Youth Campaign. In 1975, I campaigned to keep the United Kingdom in the European Economic Community. I was a Member of the European Parliament for 10 years and, for a considerable number of years following that, was in the Parliamentary Assembly of the Council of Europe in Strasbourg. I was a member of the Christian Democrats, the PPE, in the Strasbourg assembly. I have visited every nation in Europe, including the Vatican. I feel European and British. But the longer I was in Strasbourg, the more I realised that the European Union was becoming a politically integrated union and not the European Economic Community that I had supported. I therefore, after much soul-searching, voted for Brexit.
The legislation is most complicated and gives the Lords the opportunity to present itself to the United Kingdom at its best. Alas, it gives those who wish to abolish the Lords a great opportunity to present the Lords at its worst. I am impressed by the maturity of approach by her Majesty’s Official Opposition.
Brexit has many challenges for those of us who live in the island of Ireland—both those in the United Kingdom and those in the Republic of Ireland. For the Republic, it will probably mean a reduction in agricultural exports to Great Britain, increased payments to the European Union budget and reduced CAP funding for its farmers. In Northern Ireland, we take no pleasure in economic problems in the south, because they would impact on us as well, and we hope that these problems can be overcome.
In Northern Ireland, it is correct that a majority voted against Brexit. It was not only Sinn Fein and the SDLP who voted in that way; the Ulster Unionist Party also campaigned to remain within the European Union. The latter has now decided to accept the referendum result and so it can now be reasonably assumed that it is a minority in Northern Ireland that still wishes to remain within the European Union.
Yes, that is the correct position.
In trade and business, the vast majority from Northern Ireland goes to Great Britain and only a minority across the border to the Republic, so the suggestion of a new border running down the Irish Sea would be disastrous both for Northern Ireland business and for employment. I note that this proposal has now been abandoned.
In Northern Ireland, I live near the United Kingdom border with the Republic. We welcome the objective of a soft border. We are assured that already Belfast, Dublin, London and Brussels are agreed that the common travel area will continue. Let us hear no more scaremongering, please, about passports at the border. Likewise, we are pleased that the United Kingdom will have no structural posts at the border and would like 80% of trade by small and medium-sized hauliers to be customs free.
Of course, there needs to be a similar response to this on the other side of the border. Dublin, now controlled by Brussels, has still not made known to us its ideas on trade across the border. In fairness, there is still a lack of clarity by the European Union and the United Kingdom. Yes, we welcome the agreement on a common travel area, a soft border and full support for the Belfast agreement, of which I was one of the negotiators, but what does the statement made pre-Christmas mean? It promised,
“full alignment with those rules of the Internal Market and the Customs Union which … support North-South cooperation”.
It seems to me a meaningless fudge at the present.
Clause 11 refers to our devolved institutions in the United Kingdom. Those of us from Northern Ireland will consider this closely, as we have experienced the advantages of devolution since 1921.
Northern Ireland has just experienced a record number of tourists last year, and today our unemployment level is not only smaller than that in the European Union or the Republic of Ireland but even less than that in Great Britain. I never thought I would see that day.
In particular, as farm structure and size of farms are different from those in England, we will want to ensure that after Brexit agricultural policy will be a devolved responsibility at Stormont. What will be the future of the European Union’s prestigious geographical indicators, such as Parma ham and cheddar cheese? We have an interest in this because we have two in Northern Ireland—Lough Neagh eels and Armagh Bramley apples. After Brexit, will the European Union maintain them, or will the United Kingdom take over authority for these designations?
Finally, there is not only the Irish border but the border between Gibraltar and Spain. In Northern Ireland, we have a special interest in Gibraltar, as many people were evacuated from there to Northern Ireland or born in Northern Ireland during the Second World War. I trust that the interests of Gibraltar will be upheld and that the European Union will not give Spain a veto over any final EU-UK agreement that would wreck the agreement.
My Lords, I begin by drawing attention to my entries in the register as the serving chairman of the European Parliament pension fund and vice-president of its former members association, both of them 28-country organisations. I am not a UK president of something but a European one, and that probably gives noble Lords some idea of where I am coming from on this.
I have been involved in international affairs all my working life, from the age of 16, when I began as a junior official in the Crown Agents at 4 Millbank, opposite this House. Indeed, my first visit to the House of Lords—to sit up there—was when I was an official in that department. Whether it did any good or not I will leave to noble Lords to judge.
I regard this as the greatest single failure of my political life. I firmly believe not just in the European Union but in the wider concept of multilateralism: the idea that we need to do things together, whether through the UN, the Council of Europe, the European Court of Human Rights, the UN agencies or the European Community. I am a firm believer in that idea, and all the evidence, from a lifetime in international affairs, leads me clearly to the point that we work better when we work together. We may not get everything, but we certainly work better.
This is a withdrawal Bill. I know of no club, anywhere, where you get better terms from being outside it than from being in it. That is why they set up the club: to give members benefits. We, outside the European Union, can talk about what sort of result we want, but the fact is that we cannot get as good a result. I have returned this afternoon from talking to a delegation to Parliament from Norway, and I put that specific question to them. They told me, “Yes, we’re outside the main decision-making structure. When we want to influence something, we have to go to another country and convince them to raise our case alongside theirs”. Indeed, when I was in the justice ministry in Oslo not that long ago, someone said that the most important desk in that ministry was the one with the direct telephone line to Stockholm. However we delude ourselves, the fact is that whatever deal we get, it will not be as good as if we were inside.
I am particularly concerned at the impact that withdrawal may—I say may—have on organised labour. As some noble Lords know, I have a long connection with the trade union movement, and I have noted that the Government have given a good number of assurances. I will, however, be carefully reading three excellent briefings I have had: one from Greener UK, one from Liberty, one from Amnesty, and of course one from the TUC. We will be watching very closely and seeking agreement and undertakings from the Government that the safeguards won from Brussels will not be threatened. We need to protect existing rights, for instance to equal pay, and to transpose Article 157 of the treaty of the European Union—and its judgments—into the situation that we have after we leave the European Union. We also need to safeguard all the other labour advances that have been won.
We need to make sure that we do not, as Philip Hammond indicated we might, start competing by reducing workers’ rights. In an interview in the German newspaper Welt am Sonntag, “World on Sunday”, a year ago, he stated quite clearly that,
“we could be forced to change our economic model and we will have to change our model to regain competitiveness. And you can be sure we will do whatever we have to do”.
We will be watching Philip Hammond carefully. We will obviously not be the only people watching him, as he has a whole raft of people watching his every move—he probably has a spy cam in his bathroom. But we will watch carefully to see that things are protected.
Finally, Clauses 7, 8 and 9 give Ministers powers that seem worryingly wide. I hope that the Opposition will join us in opposing them, but to my own side I say: “Would you be happy for Mr Jeremy Corbyn and Mr John McDonnell to have these powers in their hands, to change legislation in ministries without reference to the democratic structure? That is what these clauses do”. I was always brought up to believe that you should look at the worst-case scenario, and believe that the person whom you really do not want driving the train is in the driver’s seat. So I challenge my Front Bench: how many powers are you willing to give our dear friend Jeremy?
My Lords, I will not answer that question.
It was very obvious when the Bill was passing through the other House that it was not fit for purpose. That has been dramatically emphasised with the report from the Constitution Committee, ably introduced this morning by my noble friend Lady Taylor of Bolton, and it is the job of this House to take a badly drafted Bill and try to make it into something adequate for the purpose. Yet we are doing it with what is probably the most historic and significant Bill that any of us have ever dealt with.
I suppose it is inevitable that when a Government put a party before country, their life will get very complicated. Prime Minister Cameron did that when he called the referendum; he was putting a tactical issue within the Conservative Party to the nation and assuming it would get us out of a hole. It did not, and we find ourselves now in a very difficult position. The noble and learned Lord, Lord Hope of Craighead, said in a forensically argued speech that the Bill, in the way that it was written, was “naive and … damaging”. I agree. The noble Lord, Lord Newby, cited “arrogance and incompetence”. There is a pattern emerging here. Almost everything that the Government have touched in relation to Brexit and the detail of Brexit has come catastrophically unstuck.
Parliament fought for, and was granted, access to the sectoral analyses that the Government had denied they had. Like many noble Lords, I spent an afternoon going through those sectoral analyses. It left me with a distinct feeling that we, as parliamentarians, were being taken for fools. They were shallow, unilluminating and frequently ill-thought out. They looked for all the world like a diversionary tactic. I have spent a better afternoon in bed with the flu watching replays of “Babe” and “Babe: Pig in the City”. It was a complete and utter waste of time. But should I have been surprised, when the Government have evaded every opportunity to be open and frank about the choices the country faces?
The noble Lord, Lord Higgins, put it succinctly in a powerful speech this morning by saying that under the guise of not hampering the direction of negotiations, the Government refuse to reveal anything. But by their bashfulness, they reveal what many of us have suspected all along: that they do not know the direction of travel or the destination. That is a very dangerous situation to be in.
The noble Lord, Lord Tugendhat, talked about financial services. We were promised an analysis in financial services. This is critical. There are a million jobs in financial services and we cannot get from anybody an indication of how the regulatory framework and the legal framework are going to work. This is not about the fat cats of the City; it is about the people who live in the next street to me and work in Glasgow, and others who work in Edinburgh, Leeds and Bristol. We need to make that information available to business; not to do so is unacceptable and extremely risky.
We hear a lot about free trade agreements and how they will sort out our difficulties with financial services. Free trade agreements deal with goods. Services are not traditionally covered in free trade agreements. On a couple of occasions they were tried and knocked back. It is not going to be easy to get an FTA relating to financial services, and everybody is pretending that it is not going to matter. Meantime, we have the Prudential Regulation Authority saying to all the big institutions, “You have to have your worst-case scenario ready”, and most of them know that it has to be ready by the end of the first quarter, at the end of March.
The noble Lord, Lord Hill, put it well when he said that there was a need for speed, honesty and certainty. That is true right across the board. I say in relation to Ireland that we have not got the speed, the honesty and the certainty about the nature of borders. Where I come from in the west of Scotland, the history of Ireland was regularly played out until a few years ago, when the Good Friday agreement resolved an awful lot of the issues. We have already talked about Gibraltar and the other territories, but it is critical in relation to the devolution settlement that we stop mucking about on this. Noble Lords have spoken with much greater authority than I ever could—despite having been, at one stage, Secretary of State for Scotland—about the detail of the devolution settlement, which could lead us to a constitutional impasse of quite significant proportions. Quite frankly—let us talk base politics—this is a gift to the separatists, and the longer we muck about on this the greater the gift is.
We are in a ludicrous situation where a Prime Minister cannot even make a speech that sets out the direction of travel. The noble Lord, Lord Dobbs, in a very witty speech, talked about how we need to behave ourselves or we will start losing powers here—actually, some of us would say, “Bring it on. We think this place needs to be reformed”. I say to noble Lords in every part of this House: we are one of the most expert Chambers in the world, so let us use that expertise, for the good of our country, to try to make some sense out of this badly flawed piece of legislation. Frankly, if we cannot do that, we always have my noble friend Lord Adonis’s alternative.
My Lords, it is a great pleasure to follow an excellent speech by the noble Baroness, Lady Liddell, but it is not a pleasure for me to be speaking in this debate about withdrawal from the European Union. That we are having it is even less of a pleasure for my daughters, who are in their 20s.
The noble Viscount, Lord Ridley, mentioned a lot of economic indicators. Some are true, but a whole host of others are not anything as good as that. The Government’s forecast for the future of the economy has not been good, as we have seen in yesterday’s report. But that is nothing compared to the hit that we have taken to our international stature and how we have been seen abroad diplomatically through how we have handled these negotiations. I weep at how we have portrayed ourselves to the international community in terms of this nation’s ability. This nation should not just be leading Europe, as the noble Lord, Lord Foulkes, said, but be standing proud in the United Nations—as one of the five permanent members of the Security Council—and in all the other bodies that we are still in. We have devalued ourselves. That is not good when we start to enter international negotiations on trade.
One of the best pieces of advice I have heard recently was, “Never tell a computer that you’re in a hurry”. Many noble Lords know why. That is nothing in comparison with when you are in trade negotiations. We are facing some of the most hard-nosed and experienced people there are, and the fact that we are in a hurry, desperate and concerned to get a deal quickly will mean that we seriously erode our negotiating ability. That sincerely worries me.
The Bill deals with bringing the acquis on to the British statute book. One of the areas that is missing in the acquis is economic and social cohesion. It is in Article 174 of the Treaty on the Functioning of the European Union, and states that one of the missions of the European Union is to reduce disparities between regions within the EU. When I was a Member of the European Parliament, I was proud of ensuring, through facts and rational argument, that my part of the world—Cornwall—received some of the highest levels of European intervention. That has enabled, among other things, Cornwall to have a highly successful university campus that has done the economy a great deal of good, yet I do not see that aspiration moving across. One of the great things about European economic and social cohesion policy is that it is based on facts, evidence and rules. As we move forward with a different regional policy in the UK and in England in particular, my fear is that we will move back to the old ways—so political influence, lobbying and the other areas of pork-barrel politics will mean that the right decisions about regional aid will not be made and the disparities within England and the United Kingdom will not be met fully by the future regime. I want those values, that guidance and that evidence-based method of deciding where regional aid goes brought on to the UK statute book through the Bill.
I am also concerned about the environmental side. Yesterday, we debated the 25-year environmental plan. I was delighted that it states that the “polluter pays” principle is important. I congratulate the Government on including that in the plan, but let us bring the precautionary principle into the Bill. The fantastic 1987 Brundtland report Our Common Future started to change the way we looked at sustainable development globally, and it was reinforced at the Rio conference in 1991. This principle is in European statute, and it is important for our environment that we transfer it. I hope the Government will bring forward suitable arrangements on animal sentience within this Bill, not in a following agriculture Bill.
Finally, the noble Lord, Lord Krebs, mentioned the report of the energy sub-committee of the European Union Committee that I chair. Every bit of evidence that we had from the sector said that we should remain, if possible, in the internal energy market. That will be very difficult if we are not inside the single market, but it is something that we need to find a way to do, otherwise our energy prices, energy trading and energy security will not be where they need to be. Euratom—an organisation we did not even need to withdraw from—was not on the referendum question paper, and there we need to be very clear that we have continuity between our current membership, through transition to our future relationship, otherwise our whole nuclear programme will be threatened.
Coming back to our international reputation, I was asked by someone on the other side of the argument why everybody always seems to accept what Mr Barnier says and not what the Government say when we are in negotiations. I believe we have had an abysmal record on negotiations, as I have said to the House before, because everything that Mr Barnier says seems to come true, while everything that the Government say disappears in smoke. That is, once again, damaging to our international reputation. I hope through this Bill, somehow, we can start to mend that.
My Lords, I am very pleased to follow the noble Lord, Lord Teverson, particularly on the question of trade negotiations. In the mid-1960s I was a very junior member of the team that negotiated the Kennedy round. I learned some lessons about trade negotiations then, one of which was that they do not bring out the nice side of other people: they bring out hard-headed self-interest and require grind, and the last thing you should ever be is in a hurry. He is absolutely right.
It goes without saying that the House must allow the Bill to pass. It would be unthinkable to try to wreck it or block it: it would do damage and the country could not afford the chaos that would follow if the Bill were in some way to not reach the statute book. That is not worth spending time on. But the Bill does need to be improved, which is where this House is absolutely in its element. This is a great opportunity for the country that we must use. We must protect and promote the sovereignty of Parliament. It is amazingly ironic that a strategy which claims to be motivated by the wish to restore sovereignty to Parliament appears to be trying to do it by bypassing that sovereignty. We cannot live with that.
If I may indulge one prejudice, it is that I hate the word “appropriate”. When I was in government, if I saw any draft in any official document which had “appropriate” in it, I would reach for my red pen. In my experience, it is either an indication of sloppy thinking by someone who has not thought out what they mean, or it is devious—and neither is right. “Appropriate” is inappropriate for this Bill, and I shall lend whatever weight I have to supporting anyone who comes up with better phrasing. That should be one of our agreed objectives.
I would like to ensure that the Bill protects the human rights of people who live in this country and am baffled by the exclusion of the EU Charter of Fundamental Rights. That needs careful examination. But we must, above all, protect the unity of the United Kingdom. I am alarmed by the position we are in on Northern Ireland and the risks that we are running. The use of slippery language, however clever—and “alignment” is, in a kind of awful way, clever—could lead to terrible consequences and slip over into things which no one ever intended.
Clearly, we have a big task and there is more one could say, but we need to ensure that the task of implementing the Bill is manageable and something that the Civil Service can do. I am constantly impressed by the scale of the challenge which the Civil Service faces now—the biggest challenge of any generation since the Second World War.
The right reverend Prelate the Bishop of Leeds used a lovely phrase, “corruption of public discourse”, which he deplored. That phrase should linger in the air, because it is what we are experiencing at the moment. I put in a plea that the Civil Service should not become subject to the corruption of public discourse. There appears in the press to be a tendency for Ministers, ex-Ministers and MPs to blame or play politics with the head of service and people who work for him. I have great admiration for Sir Jeremy Heywood and the people who serve the Government with him. I have absolutely no doubt that they are putting their very best people and efforts into serving the Government to the extent that they possibly can, and I deplore anyone who imputes lower motives to them.
If a Minister starts blaming his civil servants, I always sense that they are shifting the blame because they sense the failure of their own policies. They should say to themselves, “The fault, dear Brutus, lies not in our stars”—or in our civil servants—“but in ourselves”. The trouble is that the people who argued for Brexit knew what they wanted to get away from but are not agreed about where they want to go to. That means that we are still in the most divisive phase.
Our membership of Europe has always been divisive. It was divisive in the 1960s, and it has been divisive in the Conservative Party and the Labour Party. There is nothing new about that. But at the moment Brexit is making it a bitter division. If Brexit were to have a successful outcome, it would need by now to have generated a growing swell of support—a sense that, even if you did not like it, something was going to happen. That is not what we feel at all at the moment.
I am not starry-eyed about the EU—I think it has weaknesses and flaws—but I would favour continued membership because I believe that giving up our membership will leave us economically poorer and politically weaker. We should play our part from the inside and not pull out. But we are where we are. We have a flawed Bill and a flawed strategy, we have to try to limit the damage and I intend to lend my vote to that wherever I can.
I have one final point. The eyes of history are on us: they are on everyone involved in Brexit. History will be written by the young, not by our generation. It will be written by the young, and the young are in large part passionate in their wish to remain members of Europe. I think history will be very harsh on people who argue for Brexit and make a mess of it.
My Lords, I declare my interest as a vice-president and former chairman of the Local Government Association.
As did many Members of this House, I began my political career as a local councillor. I have seen first-hand how services can be improved by devolving powers over them to local areas rather than running them from Whitehall. Brexit should not simply mean a transfer of powers from Brussels to Westminster, Holyrood, Stormont and Cardiff. We have an opportunity to do things differently, and to do them better.
The White Paper on legislating for withdrawal from the EU stated that leaving the EU is an opportunity to ensure that,
“power sits closer to the people of the UK than ever before”.
To my mind, that means that we must devolve power to our communities. We also know that legislation concerning education, housing, social care and numerous other issues has been improved by the involvement of local government. Parliament benefits from the experience that many Members gain from serving in local government and working for the LGA and its members.
At present, local government has a formal advisory role in the EU law and policy-making process through its membership of the Committee of the Regions. The committee has made sure that the voice of local communities is listened to and informs law and policy- making. Just one example of its work is its successful campaign to block an attempt to set binding EU targets for the renovation of local authority properties. Despite MEPs supporting the Commission’s proposals, Ministers supported the committee’s view that the targets would set an intolerable £5 billion burden on local councils, and that a more general objective for each member state would better respect the principle of subsidiarity. In my eyes, this does not mean that the committee has been perfect; it certainly has not. We do not wish to leave one large bureaucracy and create another home-grown version. I am not recommending that we recreate the committee, and neither is the LGA. However, it is important that we ensure councils have a formal role, as new legislation that affects them is brought before Parliament.
I know that the LGA, together with the local government associations in Wales, Scotland and Northern Ireland, has been in discussion with the Government about how councils’ advisory role might be continued once we leave the EU. It is positive to read that the Government have already had constructive discussions with local government about how the consultative rights that councils have at European level, through the Committee of the Regions, might be replicated domestically, without recreating the committee.
I hope that these discussions will continue to make progress and the Minister will be able to update the House with a solution.
My Lords, in opening the debate this morning, the noble Baroness the Leader of the House said that the Bill is not about our future relationship with the EU, but about process. As my noble friend Lord Foulkes said, the Bill paves the way to our leaving the EU while setting aside a series of treaties that this country, this Parliament and, in particular, this House, spent hours and hours debating in the 40 years of our membership. As other noble Lords have emphasised, the Bill also has real constitutional consequences for us here at home, and in this Parliament—notably regarding the powers of Ministers, but also regarding our relationship with the devolved Administrations.
My noble friend Lady Taylor of Bolton spoke of the disappointment of the Constitution Committee that the Government have totally failed to address the concerns published some time ago in her committee’s interim report. Its latest report, published only yesterday, reiterates the serious issues that the Bill still raises about Northern Ireland. The Good Friday agreement took years of patient negotiation, first by the Major Government and then by the Blair Government. This is now a matter of critical concern; the relationship between Northern Ireland, as part of a United Kingdom that has withdrawn from the EU, and a southern Ireland that remains as part of the EU, is a very important issue, as my noble friend Lord Hain and others have emphasised.
In answering the debate tomorrow, I hope that the Minister will respond to the Constitution Committee’s recommendation that, before the completion of the Bill’s passage through this House, the Government publish an assessment of the effect of the Bill, and of the UK’s withdrawal from the EU, on the Good Friday agreement. This is a specific recommendation from one of the most highly respected committees of this House, and it deserves an answer from the Minister.
As the right reverend Prelate the Bishop of Leeds said, in what I thought was a very powerful intervention, too much of the debate on our relationship with, and withdrawal from, the EU has descended to a level that undermines all intelligent democratic argument. This Bill does nothing to retrieve the balance necessary to inform decision-taking.
In June 2016, the British people voted—not overwhelmingly, as some have tried to imply, but certainly decisively—to leave the European Union. The Government accepted that decision, and so did Parliament. The decisions ahead now must lie with a Parliament that is well informed and has real powers and rights to advise and amend government policy, as my noble and learned friend Lord Falconer emphasised.
As the noble Lord, Lord Bilimoria, said in his tremendously spirited address, the essence of democracy is that people can change their minds when they have more information or real experience of how a Government are performing. We had an election in May 2015 and another one in June 2017, the second one called by a Prime Minister expressly and explicitly to strengthen her negotiating hand in Europe. The British people voted in such a way that her negotiating hand was not strengthened; it was badly damaged and weakened. So surely the British people may well need to be consulted again at the conclusion of the negotiations—consulted on whether the Government have delivered a satisfactory result in terms of our leaving the EU. This Bill may not be the right vehicle for legislating on that point but, as a democracy, when those negotiations are at an end, the British people should be consulted as to whether what they voted for is what this Government have been able to deliver.
My contribution will focus solely on the position of Gibraltar in the context of the broader negotiations between the United Kingdom and the European Union. I declare an interest as a former Governor of Gibraltar and as chancellor of the new University of Gibraltar.
I appreciate that this Bill applies only in a limited way to Gibraltar, but there is a need to provide firm reassurances at every stage about its future. I am glad that the Leader of the Opposition and other noble Lords have referred to this issue. It is worth reminding the House that Gibraltarians voted in the referendum by a majority of 96% in favour of remaining in the European Union. It is not surprising, therefore, that they are concerned to protect the rights and benefits that they have acquired since joining the EU with the UK in 1973. The best way in which to reassure them is to provide legal guarantees in addition to ministerial statements. This is a matter that can be probed in Committee.
Gibraltarians have every reason to feel anxious about the future, because the new EU negotiating directive issued by the European Council reaffirms clause 24, which featured in earlier negotiating guidelines. This clause purports to give Spain a veto over the application to Gibraltar of any agreement concluded after the United Kingdom has left the European Union. I am glad to note that HMG do not accept the legal validity of this clause, but the fact that Spain has persuaded the European Council to incorporate this clause in the negotiating guidelines is most unhelpful. While clause 24 does not apply to this Bill, Spain is putting pressure on the EU for the clause to apply to the proposed transition period as well as any longer term arrangement between the United Kingdom and the EU. Neither is acceptable.
Therefore, we have a scenario where, in the worst case, Spain can seek to exclude Gibraltar from any broad agreement between the EU and the UK and insist on a separate agreement over Gibraltar. What we do not want is a situation whereby the British Government are faced at the end of the overall negotiations with a stark choice either to accept the general agreement with the EU and exclude Gibraltar or to postpone the general agreement until we and Spain can agree on Gibraltar’s future arrangements.
The Prime Minister of Spain, Mr Rajoy, said on 14 December 2017:
“Whatever future agreement between the EU and the UK, there has to be an agreement between Spain and the UK for that to apply to Gibraltar. We also asked that this applies to the transition period”.
Moreover, in the recent past, Gibraltar has had to face plenty of provocation from some Francoist elements in the Spanish Government both on the Gibraltar border and within the UK-Gibraltar waters. The treatment of Catalonia gives us no encouragement. The Spanish bullfighting culture still emerges from time to time.
We must bear it in mind, of course, that, before any final general agreement, there has to be unanimity among all 27 EU partners. Moreover, most of us will feel that it is very much in the interests of Spain and the UK that there should be a satisfactory resolution. Good relations between us are important, and, in any event, both countries and Gibraltar stand to gain by a co-operative arrangement across the border as 40% of the Gibraltar workforce crosses from Spain into Gibraltar each day to work. The Andalusian region around Gibraltar stands to gain from economic collaboration. That means that orderly arrangements for the border are essential. This points to the need for the Spanish and British Governments to work in their common interest on Gibraltar and well before any final agreement on the EU is put to Parliaments.
Against this background we need to reassure the people of Gibraltar. The Prime Minister has confirmed to Parliament that Gibraltar will not be excluded from the negotiations for either the transition period or any future agreement and that we will take account of the interests of Gibraltar and its unique relationship with the EU. It is good that the Joint Ministerial Committee on Gibraltar is working effectively and in a positive way. However, the people of Gibraltar need not just reassuring words but clear legal reassurances, wherever possible, that their acquired rights, which are in existence now, are preserved through this Bill, and that both the transition and the final outcome apply to them.
Most importantly, access to the UK market for Gibraltar’s well-regulated financial services remains vital for it constitutes 90% of all Gibraltar’s business with the EU. This and future growth must be guaranteed for the future. There must be no discriminatory treatment against Gibraltar at any stage as a result of this Bill or any forthcoming legislation concerning our arrangements with the EU. Anything that can be done in this Bill and future ones to reinforce this point will help ease the minds of Gibraltarians. They have been loyal to us in good times and bad. We in turn must do whatever we can to assure their future.
I look forward to the Minister’s response. I hope he will confirm that the Government are committed to providing legal as well as verbal assurances to the Chief Minister, Mr Picardo, and the people of Gibraltar.
My Lords, while noting my business interests as set out in the register, I would like to make it clear that I will be speaking in this debate and at later stages of the Bill in a purely personal capacity as a Member of this House.
Listening to the debate, I note that many views have, of course, been expressed around the House on the merits of what we are embarked upon. Noble Lords will know that I was, and remain, a supporter of the argument that Britain had no option but to leave the European Union as it progressed towards political and economic union. Despite what the noble Lord, Lord Bilimoria, said, after the Lisbon treaty we were not signed out of that. However, those arguments are now behind us. Article 50 has been triggered and I urge all noble Lords, whatever their past views, to now come together to ensure that we make the best of the future that we will now have outside the European Union. I was pleased to hear that view echoed in many contributions from around the House.
I will make two points based on what I have heard. First, as we debate the Bill, it is important that we promote a positive and optimistic view that encourages the nation to seize the opportunities ahead of us. The decision to leave was not, for me—or for most people, I believe—primarily an economic equation. But while we of course hope that the European Union will agree to an arrangement that upholds its principles of free trade with our large, neighbouring but independent economy—for its benefit as well as ours—we should be confident and optimistic about our ability under any scenario to compete and prosper as an open, global trading nation in a world where growth will be driven increasingly by the faster-growing new economies around the world. I therefore ask those who are unhappy about our decision to leave to cast aside their pessimism and avoid overstating the negatives, for the greatest damage we can do to our UK economy is to undermine confidence by talking ourselves down, both domestically and in the view we project to overseas investors.
Much is made of economic forecasts, but economic forecasting is not a science, and the reality is that the output of economic models largely reflects the assumptions fed into them. The truth is that the UK economy has been and remains resilient. As my noble friend Lord Ridley pointed out, we did not plunge into a recession in 2016, and strong economic growth continues to defy the economic pessimists. Unemployment has not soared; instead we have 400,000 more people in work than a year ago and the lowest rate of unemployment since the 1970s.
As we look forward we should recognise that we will continue to have a huge competitive advantage as a nation in our culture of innovation, our legal and political systems, our language, our flexible labour market, our strong and high-value service sector and our global network—not least with the somewhat neglected but fast-growing Commonwealth countries. We should see those countries as our gateway to the future growth economies, not dismiss them as a relic of the past. All these factors will be increasingly important advantages for the UK as we move into a new era where the basis for economic success is transformed by the revolution in digital technology and artificial intelligence. These are areas where we in the UK are already building a strong entrepreneurial base. Our success in managing this economic transformation will have a far greater impact on our future employment and living standards than the margin of error on current economic forecasts. It is a much more important area to focus on.
As I said, our future as a nation is not just about economics; let us talk positively about the opportunities of our vision for Britain as an open, outward-looking global trading nation. If we view everything from the negative mindset that we are engaged just in damage limitation, we will never inspire people to seize those opportunities and will do our country down.
Secondly, we in this House can also do our bit to remove uncertainty and build confidence by giving the Bill, which the other place has approved, a fast and supportive passage through this House. I recognise that many noble Lords have expressed concerns about the provisions for secondary legislation that will enable EU law to be transcribed into our own legal base. While it is clearly right for these powers to be scrutinised, we need to be realistic about the scale and urgency of the task. The powers are rightly circumscribed by a two-year sunset clause.
I do not accept the argument that some make that it is somehow less democratic for a UK Minister in an elected Government to lay a statutory instrument for our Parliament to approve than it is for that law to be imposed by European institutions that can override the UK Government and Parliament. I have sat for periods on your Lordships’ committees looking at delegated powers and the merits of statutory instruments, and I have a high level of confidence that our process of scrutiny—with the additional procedures suggested by my noble friend Lady Evans—will be able to hold Ministers and civil servants to account.
I therefore strongly support the passage of the Bill through our House and I urge other noble Lords, whatever their past convictions, to join in building confidence in this country’s future success.
My Lords, yesterday in your Lordships’ House we were paddling our canoes up the pleasant reaches of the environment plan, warmed by cosy aspirations and promises. But I am afraid that today our paddles will be swept away and our canoes overturned as the tsunami of Brexit sweeps away environmental protections. The pleasant aspirations of the environment plan are absolutely no protection compared to that offered by the EU directives.
We are being asked to take it on trust that such important things as the “polluter pays” principle, the sustainable development principle and the precautionary principle will be properly applied. But trust will not save a single habitat or clean up a single river. We are asked to take it on trust that there will be a strong statutory body capable of holding the Government to account. The difficulty is that that body may not be created for years, if at all, it may not be strong, and it may be underresourced. In the meantime, there is a solution to all this. There is no reason why the Government cannot put the principles I mentioned in the Bill. Currently, we do not even have a full list of the environmental functions carried out by EU bodies or which UK bodies will fulfil them in future so that we can see what is urgently needed beside the legislation that we must amend in the Bill.
The Environment Secretary proposes only a consultation on a new policy statement on environmental principles to apply post EU exit. This consultation will explore the scope and content of a new statement on environmental principles to underline our commitment. That is not nearly enough. Our job in this House is to make the Bill fit for purpose to protect the environment, making sure that the protections for habitats, species and people are all enshrined in the Bill.
I agree with the right reverend Prelate the Bishop of Leeds that the Bill should not just talk about the economy, which so many noble Lords have talked about. We will be diminished by Brexit culturally, scientifically—our scientists are no longer part of the network of European research—and in just about every way I can think of, but it will not be so bad for us as it will be for our children and grandchildren. Our natural heritage will not just be diminished but could be destroyed. Even if the Government manage eventually to fulfil their best intentions and bring in protections, there is likely to be a gap of years. We cannot afford to have that gap, which will be taken advantage of by people who would like to make a quick buck by not worrying about the “polluter pays” principle. We therefore need to amend the Bill and make sure that all those protections are in it, as they should have been from the beginning.
My Lords, 10.17 million people live under devolved Administrations in the UK. They want the best deal for Britain, whichever way they voted. They expect their devolved Governments to argue on their behalf. They did not vote to lose powers. The concern in Welsh and Scottish government is so great that both bodies have unanimously voted not to sign the legislative consent order for the Bill. Why? Because they both want to see a withdrawal Bill that works effectively while respecting devolution.
The devolution settlements are all based on a binary model, with some differences. Scotland’s model of reserved powers will also become the model in April under the new Wales Act 2017. The Sewel convention means that Parliament will not normally legislate in areas of devolved competence without the consent of the devolved legislatures. The word “normally” is important. The situation does not warrant that Parliament should legislate without the consent of the devolved Administrations. We are not in a crisis at war. Ignoring the refusal of devolved consent has never risen before; it is not needed now. The Bill requires careful, considered amendment.
The intersection of EU powers and those of the devolved Administrations has meant the latter’s legislation cannot be incompatible with EU law—a restriction on freedom or competence of legislation and policy-making that currently also applies to Westminster, and which will be lifted by the repeal of the European Communities Act 1972. It is not a question of powers coming back from Brussels, but a decision about where they will go as those restrictions are lifted. Wales and Scotland feel that as far as the effect of the Bill on the devolution settlement is concerned, restrictions on legislative competence in policy areas should be removed, as the Supreme Court said in the Miller case.
This Bill reads differently, however. It proposes changes that put new restrictions—a new set of shackles—on the legislative and executive competence of the devolved institutions, allowing the UK Government unilaterally to lock down opportunities to shape their own policies. There are many examples of policy areas where Scotland and Wales have diverged from Westminster. Take, for example, the charge on plastic bags, minimum unit pricing of alcohol, tobacco control measures at their outset, organ donation now and the different ways in which their health services are organised. The Bill, however, would give Ministers of the Crown powers to make corrections of retained EU law in areas of devolved competence without consultation with the devolved institutions. Such an ability to change an Act of the Scottish Parliament or of the National Assembly for Wales without any input from the legislature or Ministers answerable to it is clearly unacceptable.
The Joint Ministerial Committee with the devolved Governments must become statutory; it is currently not working well. There must be governance arrangements for a group that meets regularly, agrees its agenda well in advance and allows the devolved Administrations to initiate policy proposals. It must also contain a mechanism for the resolution of potential areas of legislative conflict early, without the need to go to the courts for interpretation of the law. Frameworks are also essential to ensure a common UK approach when needed, that respects the principles of the territorial constitution.
Clause 11, as drafted, does the exact opposite. Last September, Wales and Scotland suggested amendments—I have a copy of the letter written by their First Ministers to the Prime Minister. When this Bill went through the other place there were promises of government amendments but none materialised. In her helpful and warm opening speech, the noble Baroness the Leader of the House implied that the development of these amendments is proceeding well. Unfortunately, as of last night, neither the Cabinet Secretary for Finance in Wales, nor the Minister for UK Negotiations on Scotland’s Place in Europe from the Scottish Parliament could reflect such a positive view.
The constitutional implications are great. If the devolved Governments are forced—and I use the term advisedly—to push through the continuity bills that they have drafted in order to allow them to function effectively on behalf of their population, then we really will be faced with a constitutional crisis. Therefore, I ask the Minister for reassurance that amendments will not be sprung on us at the last minute and without adequate consultation with the devolved Administrations. We in this House must not be put in the invidious position of making decisions that run counter to good government arrangements between the Governments of the UK, and which concern over 10 million people. To borrow a phrase, “nation must speak unto its nations”.
My Lords, like other noble Lords I accept that if there is to be Brexit, there has to be a Bill for legal certainty. But it must not give rights to the Executive at the expense of Parliament, and it must be sufficiently flexible to cope with circumstances which over the period of our negotiations may change. It must also ensure that our future is determined by Parliament. In the words of the noble and learned Lord, Lord Hope of Craighead, the Bill is in a sorry state and Members have the right to support, speak for and, if necessary, vote for amendments within the constitutional parameters of this House. We should not be frightened off by my noble friend Lord Dobbs: this is not “House of Cards”.
It is very easy to answer questions by accusing the questioner of trying to thwart the will of the people. I, like many others, feel I have been the victim of a prolonged hijack, and I believe that hard Brexit is a minority interest. In 2010, David Cameron opposed a referendum, but eventually, after pressure and rebellion, capitulated, and in the 2015 election promised the in/out vote on the reform he had negotiated. How was it that immediately after the referendum the Government adopted an extreme position of no to the single market, no to the customs union, and no to an EFTA, EEA, Norway or Switzerland-type arrangement? We heard a great deal about the Government’s need for the freedom to negotiate without disclosing their hand to Parliament, but at a stroke we declared to a bewildered world that we wanted out of everything yet wanted a deep and special relationship with the EU—the “have your cake and eat it” position. This was maintained at the 2017 election and is now portrayed as the choice of the people because of the referendum and general election votes.
In neither of these campaigns did anyone explain the effect of these policies. To be fair to hard Brexiteers, perhaps they have only just become apparent. The hijackers, as I see them, seem to be in denial about the existence of problems despite the evidence, and the attacks upon the Chancellor and, indirectly, the Prime Minister suggest that their fervour for a hard Brexit is undiminished. Was the Ireland/Northern Ireland situation explained? Frictionless borders mean nothing when it comes to the detail. Did we explain that new arrangements for trade will need a mechanism to resolve disputes? How is a tribunal which is not a UK court different in principle from the Court of Justice of the European Union? Did anyone explain that if there was no deal, customs delays would have a serious impact on the pharmaceutical and motor industries, to name but two? In such industries, small, frequent and rapid shipments are the name of the game.
We were assured that no deal is better than a bad deal and that we could trade on WTO rules, but who explained that tariffs are only part of the story? The UK and the EU cannot grant each other more favourable terms than each is prepared to grant other World Trade Organization countries. We are told that we should have no problem dealing with the EU on WTO rules, as do the US and China, but were we told about mutual recognition agreements—MRAs—which are principally concerned with non-tariff barriers, and are arguably more important than tariffs? The United States has 135 such agreements with the European Union. Without a deal we would not only have no agreements with the European Union but also abandon the MRAs that the EU has with countries like the US and China. The MRAs are not simply WTO rules: they have to be negotiated.
The noble Lord, Lord Hain, has already referred to the 60 or so free trade agreements that the European Union has with other countries. We cannot just pick these up at will. There will have to be negotiations between the European Union, ourselves and third countries. It already appears that a joint submission to the World Trade Organization by the European Union and the UK on the division of quotas has been objected to by the United States, Australia and New Zealand. Perhaps the Minister will bring us up to date on how well that is going?
Let us have no more of how easy it will all be if we revert to WTO rules. That claim is in the same category as the £350 million on the side of the bus. However good a deal we get, it cannot be as good as the one we have now as members of the European Union. This game, as I said in an earlier debate, is just not worth the candle, so it makes sense that, if there is to be Brexit, the changes to the current arrangements should be as small as possible. Even at this late stage, the idea of the single market, the customs union, membership of EFTA or the EEA, or even the status quo should be not be removed from consideration.
It is therefore vital that the Bill before us gives Parliament, and principally of course the House of Commons, the opportunity to extend the proposed leaving date, to establish a meaningful transition or implementation period, and to have a meaningful vote, including rejecting any deal and certainly no deal. I am certainly attracted to the idea of the Government seeking a mandate, as outlined by the noble and learned Lord, Lord Falconer. It is a matter for Parliament and, although I share many of the sentiments of the noble Lord, Lord Adonis, I cannot support calls for a referendum when we have so recently seen how flawed and misleading such campaigns can be.
Like millions of other citizens, this hijacked citizen wants to be freed. I do not want to be on a ship which is steering a course through dangerous waters to a place unknown when there is a known and safe haven available. I want reality to dawn and our citizens to be told the consequences of the policies that we have adopted to implement their decision. Yes, we can leave the European Union if we must, but we can head for a safe haven—there is no need deliberately to sail into uncharted and rocky waters.
My Lords, this Bill preserves existing EU law as it applies in the UK, converting it into domestic law as retained EU law to provide legal continuity and certainty on exit day. It gives Ministers extraordinary correcting powers to amend such retained law where they consider there is a deficiency. We are therefore in, as the Constitution Committee observes, “uncharted territory”, so it is unsurprising that many organisations have expressed concerns that the Bill gives rise to ambiguity about the status of the different categories of retained EU law and that the Government are given abnormally wide powers to amend legislation.
In Committee, this House will examine whether those powers are greater than are needed for the task in hand, if and how they should be restricted, and the level of transparency and scrutiny that precedes the deployment of those powers. As my noble friend Lady Taylor of Bolton referenced, the Constitution Committee expresses the view that the overly broad powers that the Bill grants to Ministers to do whatever they think appropriate to correct deficiencies in retained EU law are “constitutionally unacceptable”. It goes on to suggest controls, such as “good reasons” statements, to be put in place on the proposed use of those powers.
Many important areas of law will be impacted by the Bill, and I want to reference workplace and equality rights—clearly a people’s issue. Clause 2 preserves EU-derived domestic legislation when the UK exits. That is important, as it addresses many EU-derived equality, employment and health and safety standards and rights, including where existing UK law has exceeded minimum EU standards—for example, on important maternity leave rights. Examples of other rights include the Working Time Regulations, the Transfer of Undertakings (Protection of Employment) Regulations, agency workers’ rights and equal treatment for part-time workers and fixed-term employees.
Clause 4, importantly, preserves the right to equal pay for equal-value work, which flows from Article 157 of the Treaty on the Functioning of the European Union. The impact that Article 157 and the accompanying EU Court of Justice case law have had on women’s pay and pension rights in the UK cannot be overstated. However, there are deep concerns that the “correcting powers” which the Bill affords to Ministers could be used to weaken such rights, including those contained in existing Acts of Parliament, such as the Equality Act. A range of workplace and equality rights in retained EU law could be vulnerable to change by subordinate legislation contained in other Acts of Parliament when that retained law does not have the enhanced protection that flows from EU membership.
Last December, the Prime Minister failed to rule out scrapping the working time directive, the agency workers directive and the pregnant workers directive. Maternity rights and part-time workers’ rights appear at risk. As the Fawcett Society powerfully observed, it would be regrettable if Brexit and this Bill resulted in the loss of the opportunity to be the best place in the world to be a woman.
There needs to be a robust process of scrutiny to ensure that executive powers in the Bill cannot be used to make changes in significant areas of policy and enhanced protections for key rights. There is also the question of Court of Justice of the European Union case law post exit, which the noble Lord, Lord Kakkar, spoke about at some length. Domestic courts will not be bound by such case law, but there are strong arguments to be put in Committee that courts should have regard to such judgments where they are relevant to the proper interpretation of law which originated from the EU. Without such regard, people in the UK may see their rights weakened.
It is also unclear how provisions in the Bill may be affected by future negotiations. During any transition period, the UK may not be able to weaken retained EU law. Future agreements on UK and EU relations may require the UK to comply with EU law, including on workplace rights. We need to understand those implications when we look at this Bill.
Finally, I return to a matter that I have raised previously. It may not seem significant to many in the great scheme of economic affairs, but it is hugely important to the people affected, and that is the need to replicate the protections from violence against women and girls post exit day. Women and girls at risk of violence may lose significant legal protections. European protection orders, which grant victims equivalent protection against perpetrators across the EU, will no longer be available to UK citizens. The ability to share data on perpetrators and a host of other measures aimed at tackling human trafficking, female genital mutilation and the sexual exploitation of women are also at risk. We need to understand how these rights and protections will be preserved post exit day.
My Lords, it is a pleasure to follow the noble Baroness, Lady Drake, and to have listened to her important observations on equalities and employment rights, and the potential for them to be weakened in this and other Bills. I congratulate the noble Lord, Lord Bowness, on his excellent demolition of a hard Brexit. As he said, a hard Brexit is a minority interest. Indeed it is.
In an earlier contribution, the noble Lord, Lord Hill, said that there is political paralysis caused by Brexit and that the Government need to reduce uncertainty. I agree with him, and I agree with all those business leaders who are urging the Government to start showing some leadership, given that we are half way through the period allowed by the triggering of Article 50. It is staggering that so little has been done and equally staggering that the Cabinet seems incapable of even proposing what it wants from our future trading relationship with the European Union.
Much has been said about the need for frictionless trade with the EU, and I think we are all in favour of that. However, I am prepared to acknowledge that frictionless trade means that we must stay in the single market and the customs union and that, if there are substantial changes to those structures, we will need a transition or implementation period of several years. Two years or less from March 2019 is simply not long enough, given the enormity of the changes that would be required. Anything other than staying in the single market and the customs union will hit investment, jobs and growth. There is already evidence that growth is lower than it could be and that it will go on being so, caused entirely by the uncertainties over investment that Brexit is causing.
That point was made recently by the Governor of the Bank of England, who estimated that Brexit is costing the UK about £200 million a week in lost growth. This is compounded by the fact that there now seems to be some evidence that all the uncertainties are causing the banks to get increasingly nervous about company borrowing levels post Brexit, and they will be looking closely at companies seeking to borrow without having developed a secure post-Brexit business plan. A failure of companies to invest is in no-one’s interest because it will cost growth and jobs.
Exit from the customs union will lead to soaring red tape, with new customs rules and paperwork, as the CBI has pointed out. It will hardly be frictionless. VAT will have to be paid up front. All the major changes will come as a huge shock for tens of thousands of companies that export only to the European Union that currently have frictionless, borderless trade and that have no experience of the paperwork required to export to places other than the European Union. How will those companies understand the required documentation and the rules?
I have heard it said recently that the Government are yet to train the people who will train the staff in the relevant companies. What checks are being made by Ministers on who is doing the necessary preparatory work and what resources are going into it? How many businesses might lose business because they do not know what they should be doing and fall foul of the rules? We should note that the French announced recently that they expect to spend three years training their customs staff.
In a recent report, the National Audit Office said that the Department for International Trade is struggling to develop specialist trade skills among staff and has therefore slowed down its work. Apparently, one of the problems is that staff have moved too often in Whitehall. The failure to deliver trade deals will lead to less growth and fewer jobs, yet the Department for International Trade has had an extra £25 million in the current financial year to prepare for Brexit. What has that been spent on?
I conclude that there is so much uncertainty that the British people have the right to be consulted again on the terms of Brexit, as negotiated. There are two reasons for that. The decision to leave the EU was made in a referendum. Constitutionally, I find it difficult to see why the people should be denied the right to a final say on the exact terms of Brexit once Parliament has debated those proposed terms. I draw the attention of the Minister to the fact that, in recent polls, the majority of the public want a referendum on the final terms. The last one I saw, a few days ago, showed 58% support for a confirmatory referendum. However, importantly, 85% of 18 to 24 year-olds and 74% of 25 to 34 year-olds wanted the right to vote on the final terms. I do not think we can disregard the views of young people, who will have to live with the consequences of Brexit. I agree entirely with the noble Lord, Lord Wilson of Dinton, who a few moments ago talked about this issue. As I recall, he said that we have to bear in mind how history will judge harshly those who disregard the views of the young.
My Lords, naturally I want to begin by referring to the Irish border question, as we are one of the regions most affected by the decision taken in 2016. I believe that the question of the Irish border has almost been weaponised in this debate because, in my view, the scale of the problem has been grossly exaggerated. Statistics are dangerous things, but I want to give some figures from the Irish Central Statistics Office. In 2015, imports to the Irish Republic from Northern Ireland accounted for 1.6% of total Irish imports. Coincidentally, the percentage of exports to Northern Ireland from the Irish Republic amounted to 1.6%.
Of course, that does not tell the whole story. It is perfectly obvious that there are local issues, particularly around agriculture, the movement of animals and things of that nature, and the processing that continues. We have to put this into perspective, however. When people bandy around language about threats to the Good Friday agreement, most of those making such claims did not negotiate the Good Friday or Belfast agreement and, as far as I am aware, have not consulted any of us who did. We should bear in mind that we should be cautious with language, because people are using this for political purposes. It has been used deliberately in the Republic, by Sinn Fein, to try to create a huge crisis. It is a difficult issue—there is no question of that—but I believe that there is a will on both sides of the Irish Sea to resolve it. I also believe that the United Kingdom Government will not put up a border. The only threat of a border comes from Brussels forcing the Irish Republic to put one up, and we all know that, politically, it is impossible for them to do so. Therefore, we have to look at alternative mechanisms. There are quite a number at our disposal. I appeal to colleagues to remember that when they use such language and this example, it is seized on by elements not in favour of a peaceful outcome and a settlement within the constitutional framework that the agreement set out to achieve.
I am glad that the noble Lord, Lord Foulkes of Cumnock, is back in his place. Earlier, in his contribution, he said that he wanted the devolved Administrations to have a legislative consent Motion and that one from each of them would have to be in place before a decision could be taken. I hope he realises what he is saying. He would be giving a veto on the future of the United Kingdom’s position in the European Union to Sinn Fein because it would have the ability in the Stormont Assembly—if it were functioning—to veto any legislative consent Motion, irrespective of the terms. He must understand that that is the inevitable consequence of what he is saying. I accept that there are consequences to and difficulties with the devolution settlements. People need to realise something about the powers that would naturally come back to the devolved Administrations. The devolved Administrations —and the United Kingdom as a whole—have not had any input on, for example, agricultural policy for 46 years. We have no capacity at the present time, let alone the devolved Administrations.
Energy is another key issue. We have constructed, or are trying to construct, an all-Ireland energy market, but it is not an energy market on its own. It is connected by both gas and electricity to Great Britain, and our UK energy market is physically connected to France. Clearly, big issues there need to be resolved. I also want to make a point about mutual recognition agreements, particularly as they apply to things such as medical devices. The CE safety mark that applies to many goods is one of the matters that we will have to thrash out as the legislation proceeds and other Bills come before the House.
I close by making the point that we talk about the wonderful trade opportunities we have. That is true, but we are still running an £80 billion deficit with the European Union. While it is vital to maintain the maximum amount of trade that we can, there is something seriously wrong with how we are doing business if we have a £1.5 billion a week loss on trade, week in, week out. What is wrong with us? There are clearly other policy issues. Our membership, or lack of it, of the European Union is not the whole story. It is a part of it but not all of it.
One thing I became aware of recently was that many people in this country feel an allegiance to the European Union that almost exceeds their allegiance to the United Kingdom. I had not been aware of that before. I understand that there are lots of people out there to be convinced, but we have had the referendum. It was an “in or out” referendum and the Head of the Government made that clear. Parliament passed the law and, whatever our position as a party—already alluded to by the noble Lord, Lord Kilclooney—it is done. We should get on with it and get the best possible deal, but trying to rehash the thing will merely create further division and leave us with no prospect of a future.
My Lords, I shall address the amendment to the Second Reading of the noble Lord, Lord Adonis, which calls for a second referendum. It has rather been dismissed because noble Lords say that this is not the Bill to amend in that way so we should not consider it. But we should consider it because around the House there seems to be a certain amount of support for the whole idea of a second referendum. That raises more questions in my mind than it answers.
The first question is: when would we have the second referendum? Would it be in October this year, when the negotiations should have been completed and before it is ratified by the 27 different countries in the EU and the EU Parliament? Or, would it be when the agreement had come back, having been ratified in March next year, just before we leave the EU under the Article 50 provisions? Or, let us face it, the devil is always in the detail, and we could go through the next 21 months laid down by Michel Barnier and have the final agreement with the EU. The problem is that at that point we would have left. There is a timing problem that needs to be addressed by those in favour of a second referendum.
The next question is what you put on the ballot paper. Do you ask: “Do you like this deal, and if you do, do you want to stay in the EU?”, “Do you dislike this deal and still want to stay in the EU?”, or “Do you dislike this deal and would like to leave the EU”? It is complicated, whichever way you look at it. It is so complicated that all it would do is create more confusion, rather than anything else.
Then there is the noble Lord, Lord Foulkes, who would like a parliamentary vote to say that we have changed our minds and we will stay in the EU. I ask him what position that puts me in. I have campaigned to leave the EU but Parliament tells me that I cannot. There I am, with a decent majority in the country who voted in the referendum to leave, but Parliament says, “No, it was all a great mistake and we should stay in”. I have no option then but to take to the streets because I cannot get any representation in Parliament. All I can do is protest outside Parliament.
Have a referendum.
We have dealt with the referendum. The referendum is extremely complicated. I do not know that there would be a clear answer.
The accusation is that the Government have negotiated extraordinarily badly. I will not defend the negotiations; I think we played a weak hand very badly. But at the end of the day, these negotiations go on with the EU. Before we could continue the negotiations, three totally bogus things were raised. One was that we had to agree on the Irish border. Hold on: the Irish border will be the only land border that we have with the EU when this is all over. How can we separate that from a trade deal that we do with the rest of the EU? It is absolutely ridiculous. How can you treat EU citizens living in this country separately from the immigration policies we will have with the EU when a final deal is done? Then there is the money. It was said that we must agree on the money before we agree anything else. I heard somebody say the other day that it was rather like walking into a restaurant and calling for the menu and for the waiter to come along and say that you had to pay for your dinner before you had even ordered it. The whole thing is ridiculous.
The bill for what we had to pay started at €100 billion. It has come down a bit, I am glad to say. But why are we being accused of being intransigent? The noble Lord, Lord Wilson, said that there was a great argument for not being hurried. Hold on: I have never stopped hearing from the EU that the clock is ticking and that we must get on—all these ridiculous elements have been raised that we must deal with before we can move on. As far as I can see, all the delay has come from the other side, not from the Government.
Then there is the constant argument that we do not know what we want. Yes we do: we want an ad hoc free-trade agreement with the EU so that we can carry on selling things to it and for it to sell more to us, as we have been doing so far.
I finish on the whole issue raised by the noble and learned Lord, Lord Hope of Craighead. He asked a viable question about the powers taken under the Bill. I have campaigned for years to try to get powers back from Europe. Let us face it: those powers are massive, as the noble Lord, Lord Pearson, reminded us. The Henry VIII provisions were used to impose EU edicts on Parliament. I am not in the business of seeing the Executive taking all those powers. We should re-strengthen Parliament and take advantage of that at this stage. Maybe we should have a sunset clause so that these powers lapse after a period, but it is not our business to see the Executive strengthened as a result of the Bill.
It is of course a great pleasure to follow the noble Lord. I did not agree with very much of what he said, but I was trying to imagine him out on the streets, which gave me pause for thought.
Being No. 54 of 190 speakers, there is a possibility that I have might say something that has not been said before. We have heard some wonderful speeches about the defects and gaps in the Bill, and I bow in deference and gratitude to the recommendations of the Constitution Committee, whose report will help us enormously in the next stages of the Bill. But as we all know, only when legislation is applied to real-life issues—the consequences for people, their jobs, families and well-being—will we identify the gaps and unintended consequences. In many ways, like my noble friend Lady Drake, I want to talk about people’s issues. However, I believe that the noble Lord, Lord Empey, is quite wrong when he says that the Northern Ireland border issue is being exaggerated. My family in Cavan do not agree with him at all. Why would we put in jeopardy the Good Friday agreement?
As the Labour health spokesperson, I will address my remarks to the realities of Brexit for our NHS and research. Like many noble Lords, I too have received briefings from many different sectors and many say the same thing—that their sector needs to remain within European Union regulatory regimes to thrive, and they plead for clarity and certainty about what will happen. That plea echoed around this Chamber in speech after speech today. I am grateful to Cancer Research UK and the Association of the British Pharmaceutical Industry for their work on clinical trials regulation.
The UK has been heavily involved in developing the existing regime, which will harmonise the assessment and supervision process for clinical trials via a central European Union portal and database, currently being set up by the European Medicines Agency. In 2019, the new regime kicks in and this presents a problem of great uncertainty. This means that the clinical trials regulation, the CTR, will not automatically be captured by this Bill. It is not clear whether the UK Government will look to align with the regulation or seek access to the EU portal and database, and in what timescale. As a priority, the Government should immediately provide greater clarity on plans to ensure UK alignment with the EU clinical trials regulation. What specifically will be the mechanism for UK access to the portal and database?
I cannot think of a more potent issue than alignment with the clinical trials regulation when discussing access to innovation and new medicines. Cures for rare and childhood cancers, for example, and rapid UK access to them are at stake. Similarly with drug regulation, when will the Government offer certainty that the UK will have agreement with the EU to ensure we can continue to take part in the EMA’s centralised procedure for drug licensing? Any future drug-licensing system must not exacerbate delays in access to the most innovative treatments for patients in the UK and across the EU. Again, certainty is needed.
Equally, people are at the heart of this Bill—people who work in our health service, both the scientists and the medical staff, who move across the European Union with ease at present. Can we be confident that the Home Office will design a future immigration system that enables us to attract, recruit and retain global scientific talent at all professional levels, regardless of their nationality, and the nursing and other medical staff who enable our NHS to function?
And what about the patients? I know and welcome the good intention of the Government to continue some version of the European Health Insurance Card, which symbolises the many benefits that the European Union brings to all its citizens. However, even my inexpert reading of the Bill suggests that this will be an extremely difficult or impossible thing to obtain. As one expert said in his evidence to the House of Lords European Union Select Committee:
“European governments did not adopt mechanisms to allow their citizens to access healthcare elsewhere for reasons of altruism. The welfare of a drunken participant in a stag party in Prague or Krakow never entered their thinking. Instead, their goal was to support one of the European Union’s four fundamental freedoms, the freedom of movement of people. Quite simply, a single European labour market would be impossible if those moving for employment, either permanently, or … on a daily basis, could not be assured that they would be looked after if they became ill”.
The same applies to those who live in Europe. This flies in the face of this Bill and the Government’s stated intentions, and it leads me to my last point—honesty.
When will the Government be honest with the people of the UK about what they will lose post Brexit in their access to healthcare if they travel and work in Europe, and indeed in many other matters revealed today in the leaked impact report? Almost every sector of the British economy included in the analysis would be negatively impacted in all the scenarios, with chemicals, clothing, manufacturing, food and drink, cars and retail the hardest hit. Just when will the Government come clean about how this will affect people and their families?
My Lords, I am happy to follow the noble Baroness, Lady Thornton, particularly as on this occasion she has said nothing to make me change my speech. I remain a remainer but, for the purposes of this Bill, regard that as a complete irrelevance. As many have said, this is a necessary continuity Bill to transpose EU law, which represents a large part of our existing law, into UK law when we repeal the 1972 Act. In short, it will avoid a huge legal vacuum if and when we leave the EU.
That said, save in one eventuality only, the entirety of this Bill could and in some ways—pace the noble Lord, Lord Wilson of Dinton—should more appropriately be dealt with not here but in the next Bill. The withdrawal agreement and implementation Bill will come along later in the year when, one hopes, we will know—at least to the extent of heads of agreement—the basis on which we are leaving. The one eventuality in which this Bill truly would be crucial would be if—one hopes it is a remote “if”—the Government at some point abandoned negotiations for an agreed withdrawal and we simply crashed out of the EU on exit day. Then indeed, with no prospect of a later Bill, a continuity Bill to keep our laws intact would be required. That eventuality apart, why can all these provisions, as to what should be retained law and our future approach to it, not be part of the implementation Bill?
In all probability, we will initially leave by a transition, implementation or standstill period—call it what you will. During this period, we will continue to recognise the jurisdiction and jurisprudence of the CJEU. Given that, surely the point at which EU law will be frozen and, as retained law, become part of UK law will be at the end, not the beginning, of that transitional period. Clauses 2 and 3, which in effect freeze EU law as at exit day, will have to be amended, presumably by the implementation Bill itself rather than by any of the highly contentious regulation-making powers in this Bill, most notably Clause 9(2).
Incidentally on the question of the Bill’s regulation-making powers, not only do Henry VIII powers—executive powers to repeal or amend primary legislation —need to be curbed; so too we should place controls on the Executive’s power by secondary legislation, which is generally unamendable and not that closely scrutinised, to implement policy decisions that are more properly the subject of primary legislation.
That takes me to the Constitution Committee’s recommendation in yesterday’s report that “retained direct EU law” should have the legal status of “domestic primary legislation”. That is a most interesting recommendation. Instinctively I am inclined to agree, in so far as it would prevent retained law being changed merely by executive regulation by secondary legislation. However, I am less convinced that retained law should not be subject to the Supreme Court, as proposed under Clause 6(4)(a) and 6(5), being able to depart from it as it can from its own or previous House of Lords decisions under what lawyers know as the 1966 Practice Statement—exceptionally and only for compelling reasons. That is essentially the test now proposed in the Bill.
I have a final word or two about the Charter of Fundamental Rights being disapplied by Clause 5(4). I see no good reason to retain the charter. We are of course retaining the Human Rights Act and our full acceptance of the reach of the European Convention on Human Rights. The convention and the Supreme Court’s ever-growing readiness to invoke our own historic common law, as necessary, fully meet our human rights requirements. It is true, as the noble Baroness, Lady Smith of Basildon, pointed out in her speech, that David Davis himself invoked the charter last year when making his complaint against the UK about investigatory powers, but all that is now expressly taken care of in the Data Protection Bill that we have just passed on.
The charter, I suggest, would needlessly complicate things to no good purpose. It is, at best, of uncertain reach, applying as it does only to the implementation of EU law, which is, of course, to become a past concept. The present criteria for deciding the scope of EU law is already described as “incredibly ambiguous”. The charter, of course, consists both of rights, essentially mirroring ECHR and other international law rights, and of principles. The latter are mostly social and economic, are really aspirational and without direct effect. In short, I accept the Government’s arguments on the charter, but clearly there are aspects of the Bill that will need amendment and we look forward to 10 busy days to deal with those.
My Lords, if the Foreign Secretary were able to be with us today—we should be so lucky—he would doubtless remind us of the story in Sophocles’s “Oedipus” about the great Sphinx that devoured young Thebans if they could not answer its riddles. I think that the great Sphinx in British politics for the last two or three decades has been our membership of the European Union: it is making a pretty good job of devouring the Conservative Party and a good deal else in politics. How has it happened? I follow my right honourable friend Kenneth Clarke in making this point. I joined the Conservative Research Department in 1966, partly because the Conservative Party was intent on getting this country into what was then called the European Common Market. Throughout my time in politics, the Conservative Party has been in favour of us playing a leading role in the European Union. I was a Minister in Margaret Thatcher’s Cabinet and a Minister in John Major’s Cabinet. So what happened?
As noble Lords know, we joined the European Union when we were being called the sick man of Europe. We pretty well got the European Union on our own terms. There have been a couple of important, significant changes along the way. First was the single market, with the Single European Act sustaining us. If they were here today we could say, “Take a bow, Margaret Thatcher and Arthur Cockfield”. The other big change over the last few years was the enlargement of the European Union, again very largely the result of the leadership of this country and of Conservative Governments. Those have been changes, I concede that, but I do not think that they are the sort of changes that should deprive us of our senses. There has been, of course, another change, which is the referendum and its result. Referendums, my noble friends will recall, were described by Margaret Thatcher as,
“a device of dictators and demagogues”.
No demagogues here, of course. There was a bit of alliterative ranting by one of our noble Viscounts earlier, but no demagoguery in this place. So why did we have this referendum?
The whole House knows that for many years it has been recognised that loyalty is the secret weapon of the Conservative Party. Sometimes, as John Major would remind us, it is so secret that it can be barely discerned by the human eye. The whole House knows that we had this referendum in order to try to manage the Conservative Party and it blew up in the Government’s face. So now we face not just the consequences for our international affairs but the consequences for the way in which we do politics in this country, as my noble friend Lord Higgins indicated so eloquently in his speech. I hate referendums. If we vote at some stage to have another referendum on membership of the European Union, I will oppose that legislation. I think that referendums are appalling and a sin against parliamentary democracy.
I have talked about secrets. There is another secret that concerns me. During the referendum campaign, the Secretary of State for the Environment said that, once the negotiations began, we would be in the driving seat. The secret is: where are we going? What are we driving? Is it a bandwagon or a hearse? What genuinely surprises me is that so many of my honourable and right honourable friends spent all those years moving from safe house to safe house under cover of dark to arrange what has now happened, plotting and scheming away to get it, and when we get there they do not know what to do. They have forgotten the rest of the trick. I have to say to my noble friend who spoke earlier that his approach to what we should be now doing seemed to me a tad broad brush, rather like his espousal of civil disobedience.
I just hope that at some stage we can find out what the Government want to do, particularly in relation to the Northern Ireland border with the Republic. I listened to my noble friend Lord Empey, but I also listened to two former Secretaries of State for Northern Ireland and to a former Cabinet Secretary. This is a serious issue. If A equals B and B equals C, then C equals A. If Northern Ireland is to have a frictionless border with the Republic and Northern Ireland is, as it will remain, part of the United Kingdom, then the United Kingdom as a whole will have a frictionless border with the European Union, unless we are going to redefine the borders of Northern Ireland. We are in a position where what suits Belfast suits the United Kingdom: it has to. I do not take what my noble friend Lord Empey said about Sinn Fein seriously when this Government are being sustained by the DUP. I hope to have the opportunity when we get to Committee of moving one or two amendments about the relationship between the border and the Good Friday agreement.
In the meantime, I look with horror at what is happening. There is a great line in Shakespeare’s “King John”:
“So foul a sky clears not without a storm”.
My Lords, that was a superb speech. The sky is indeed foul, but it is up to us to try to do something about it.
The speeches today and tomorrow are many, but there will be few disagreements. The vast majority, like mine, will show acute concern about the rudderless nature of the Brexit misadventure, the lack of vision or of preparation and the fact that, as the noble and learned Lord, Lord Hope, said, the Bill comes to us in a sorry state. I am profoundly dismayed about the way in which the Prime Minister continues to put party before country, desperately trying to find a fudge that will keep her in government, if not in power, and placating the Brexiteers, whose thirst for leaving the EU is unquenchable. I fear that this fudge will mean that everything possible will be done to ensure that the much-promised meaningful vote will not be about a firm framework for the future but rather about a heads of agreement which has been described as an expression of intent and aspirations. As ever, for the Prime Minister it will be the politics of her party rather than the policies for our country that will determine success if we exit the European Union on 31 March next year.
All the detailed negotiations that will determine the future prosperity of our country and the security of our citizens will, as we always advised, take place after 31 March, during a transition period. That is crazy. The detailed negotiations will take place at a time when we will have no voice and no influence in the Council, the Commission or the European Parliament. I realise that because of the all-pervading influence of the Brexiteers it would be anathema, perhaps suicidal, for the Prime Minister to suggest that, rather than a lengthy transition, we should seek to extend the Article 50 deadline, but that would be the right thing to do. It would ensure that Ministers remained in control during the negotiations. We are constantly told that the main reason why people voted to leave the European Union was, indeed, about control.
I share the concerns expressed about this fundamentally flawed legislation: the undermining of legal uncertainty; the extension of delegated powers; the impact on our economy and quality of life, et cetera; the impact on the protection of jobs and the rights of workers and consumers; the impact on the protections for women and girls, including those that they currently get from the European protection orders; the guarantee of the peace process; and so much more.
My right honourable friend Sir Keir Starmer did a brilliant job in the Commons and has shown real leadership and huge skill in extending the parameters first set down by my party. I know, too, that my noble friends Lady Smith and Lady Hayter will do likewise. Indeed, they will provide great leadership for this House. I will certainly support their amendments, which, I am sure, will receive wide support across the House. I will also, however, urge them to go further and to embrace membership of the single market and the customs union, which is critical for all parts of the United Kingdom, especially Northern Ireland. That is what we have agreed to do as part of the transition process, but for the sake of our economic and social well-being we need it to be permanent. If we do not secure our economic future in this way, we will not be able to implement the education, health and social policies that are urgently needed to heal our deeply divided society and address the burning inequalities identified by the Prime Minister.
In some of the poorest areas of the UK, EU funding has made a huge difference. It is essential that areas such as Cornwall and the Isles of Scilly, which would have qualified for £350 million from EU structural funds in the next budgetary period if we remained in the EU, continue to be properly funded. Can the Minister reassure me that there will be a properly funded, locally led successor to EU regional aid?
Focusing briefly on education, I remind noble Lords of my interests in the register. In Oxford in 2015, 18% of our staff, 15% of our students and 14% of our research funding came from the EU. Each of those areas is now being undermined by Brexit. In terms of research, development and innovation activities, in the last seven-year financial framework the UK as a whole contributed €5.4 billion to the EU and the EU contributed €8.8 billion to the UK. Not only is the UK the most active participant in Horizon 2020, but our institutions co-ordinate about 20% of the projects that have been funded so far. Our collaboration and our influence are extraordinary. With Brexit, the number of EU academics resigning has gone up exponentially, suggesting that it is increasingly difficult for our universities to attract the best in the world. This is critical for our research and our reputation.
What assurance can the Minister give that our new relationship with the EU will not jeopardise the ability of our universities to participate in future EU framework programmes and conduct world-class collaborative research with EU colleagues, to host ERC grants and influence future research agendas or to recruit and retain the best staff, and to recruit students, regardless of nationality? We should heed the words of Chekhov:
“There is no national science, just as there is no national multiplication table; what is national is no longer science”.
Research and innovation are just two of many areas in which we collaborate with our European partners: exploring ideas, exchanging best practice, finding common solutions to common problems, benefiting our own citizens as well as those in other countries and strengthening relationships. Some partnerships are bigger than others, but all contribute to fostering understanding between peoples and organisations.
I am proud that the People’s History Museum, which I chair, recently secured €271 million from the EU as part of the Culture Lab project involving partners from six member states. Our pilot project will explore the impact of Brexit on migrant communities in the UK and the EU and we will work with local migrant and non-migrant communities to explore how, as Jo Cox said,
“we are far more united and have far more in common than that which divides us”.—[Official Report, Commons, 3/6/15; col. 675.]
For me, those words encapsulate not only what I believe to be the reality of the United Kingdom but the reality and the ethos of the European Union. In 2012, the EU received the Nobel Peace Prize for advancing the causes of peace, reconciliation, democracy and human rights in Europe. The right reverend Prelate the Bishop of Leeds was absolutely right. Membership of the European Union, and what comes afterwards, is about more than trade and the economy; it is about values, tolerance, respect, a space to disagree agreeably and hope not hate. In this difficult and dangerous world, it is our responsibility to seek the best possible outcome as we break our ties with this alliance of sovereign states, which has changed our continent and our country for the better.
My Lords, we know that Brexit would initiate a major constitutional, political, social and economic change to the United Kingdom. The right revered Prelate the Bishop of Leeds was right to address the wider social and cultural implications. The economic factors themselves, however, have serious political and social effects. Perhaps it is not surprising that we have had strong populist movements since the financial crash of 2008. We should therefore heed the noble Lord, Lord Bilimoria, and indeed Mark Carney, when he notes that Brexit is already costing the United Kingdom around £200 million a week in lost growth.
Today we hear that the Government have finally undertaken economic impact assessments of three possible outcomes, ranging, in effect, from soft Brexit to no deal. In none of these scenarios is our economy as strong as it would be if we remained in the EU. Anyone who has read the so-called impact statements that were hidden away in DExEU cannot but be chilled by the worries from stakeholder after stakeholder about leaving the EU. In sectors such as the life sciences industry, higher education and other service sectors where the UK has a leading edge, the challenges are most acute.
Yet no one knows quite where we are heading, as the chiding of his Government by the noble Lord, Lord Hill, made clear, as did the noble Lord, Lord Patten, in an amazing speech. The Government cannot reconcile the diametrically opposed forces in their own party to plot a way through. The passionate speech from the noble Lord, Lord Bridges, made that clear. Suggesting one course produces a massive abreaction from one side. Suggesting another, an abreaction from the other. Hence the poor officials who draw up legislation and are sitting in the Box today have been mandated to give wide powers to Ministers, depending on the outcome of negotiations and where a future Government wish to head.
However, that will not do. Even the noble Lord, Lord Strathclyde, hints that it might not. In the Sanctions and Anti-Money Laundering Bill there was the same dilemma, with wide Henry VIII powers proposed—or Oliver Cromwell powers, to take the point of the noble and learned Lord, Lord Hope. The Government should know from the sanctions Bill what is likely to happen here. An amendment on this constitutional matter, in the name of the noble and learned Lord, Lord Judge, won by 80 votes. The noble and learned Lord has already offered his services to parliamentary counsel on the sanctions Bill. This Bill could do with his services, too. The Minister on the sanctions Bill must have been acutely aware that those seeking to tackle those constitutional affronts were rightly called Hope, Judge and Pannick.
There are of course other changes that we should seek in this Bill. We must ensure that Parliament will be given a meaningful vote on the deal, as other EU Parliaments will, as was noted by the noble Baroness, Lady Smith of Basildon. Given that this process started with a vote of the people, surely the people should be given a vote on the deal. As the noble Lord, Lord Mandelson, pointed out, whether the UK was in or out of the single market or the customs union, for example, was not on the ballot paper. The Government have emphasised that no UK citizen would lose rights as a result of leaving the EU. It is difficult to square that with losing the right to live and work elsewhere in the EU.
There are, however, further threats in the Bill. I briefly mention those in three clauses. The powers in Clause 7 could, for example, be used to water down the Equality Act 2010, as Maria Miller and others pointed out in the Commons, and as emphasised today by the noble Baroness, Lady Drake. Clause 8 addresses Britain’s international obligations. My noble friend Lord Wallace of Saltaire outlined the challenges here. We know that the UK’s role globally will be reduced by being outside the EU. The Commons Foreign Affairs Select Committee reported today on serious understaffing in embassies across Europe. This must be addressed, if we are to engage as Ministers suggest, but we will have reduced resources with which to do that. We have already seen our reduced influence when we could not secure a second term for the UK judge in the International Court of Justice. This was for the first time in its history and despite lobbying hard through our embassies across the world.
Clause 8 does have a protective subsection, which my noble friend Lady Bowles borrowed for the sanctions Bill. It says, for example, that,
“regulations under this section may not … create a relevant criminal offence”,
which is something we had to knock out of the earlier Bill. But as the Constitution Committee notes, we still need to limit the powers here to those that are necessary and reasonable. Then we come to the astonishing Clause 9, which in effect allows a Minister to modify more or less everything in the Bill and, it seems, any existing law. I think not.
There will be close scrutiny of the Bill in this House. I hope the Government will be as open to working with us as they were on the Sanctions and Anti-Money Laundering Bill. They will have heard the voices behind them, as well as those to the side of and in front of them. I am sure they know that we cannot simply give them and all future Governments a cheque book full of signed blank cheques.
My Lords, I have two interests to declare because I shall talk about the movement of people on the island of Ireland and between our islands. I was born in Northern Ireland and am entitled to Irish citizenship as birthright. I currently use a UK passport. My identity is British and Irish, although because of the oddity of UK practices of recording ethnic classification—seemingly contrary to the Northern Ireland Act 1998—I am not allowed to state this for standard UK administrative purposes, and usually have to classify myself as “White other”. I am also on the advisory board of These Islands.
A very large number of questions have been raised about the adequacy of the Bill’s approach to dealing with retained EU law, particularly but not only in the devolved nations. That is the proper focus for this debate; we should concentrate on the constitutional adequacy and competence of the legislation, not on wider questions about Brexit.
The devolution settlements are far from uniform, as we know, which makes it harder to see what is proposed and whether it is adequate. But it is uncontroversial that the Northern Ireland settlement differs from the Scottish and Welsh settlements not merely in its provisions but in its status. Other noble Lords have spoken with more authority on this highly relevant matter. The noble Lords, Lord Hain, Lord Empey and Lord Patten, all mentioned it. This is because the Belfast or Good Friday agreement is an international agreement between the Republic of Ireland and the UK, which, alongside many other provisions, established the North/South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference. Part 5 of the Northern Ireland Act 1998 mandates participation in the cross-border institutions.
It follows that any moves to change retained EU law after Brexit raise two distinct issues in Northern Ireland—more than two, in fact, but two very important ones. First, as for the other devolved Administrations, it raises questions about changes in devolved matters post Brexit being made by the UK Government, rather than by the relevant devolved Parliament or Assembly. Secondly, unlike the other cases, it raises questions about the UK Government’s commitment to work not only with the Northern Ireland Assembly and Administration—as we all know, these are not currently in action—but, as required by the Belfast/Good Friday agreement, with the Government of the Republic of Ireland and to have regard to the Belfast principles, which include partnership, equality and mutual respect. Will the Government write into the Bill a commitment to meet these conditions in making changes to retained EU law that bears on Northern Ireland post Brexit? What forms of interaction with Northern Ireland office-holders and with the Dublin Government will the Government commit to in order to meet these requirements? Those are my two questions to the Minister.
I believe that clarity about such restrictions post Brexit is vital. We are in the curious situation that although the Government have insisted for almost 18 months now that they do not seek a hard border on the island of Ireland, they have yet to say anything about how this is to be achieved. To be sure, we cannot say much about the trade aspects until those negotiations are further advanced but we can say something about the movement of peoples. Over a year ago, I asked a previous Secretary of State for Northern Ireland how it was to be done. She—or he—replied, I thought a bit casually, “By passports”. That was interesting. Who is to show a passport, where and for what purposes? We know that it is not to be on the Irish border, which is to remain soft, or between Northern Ireland and the rest of the UK, which would be intolerable to our constitutional integrity. We also know that thousands of British and Irish citizens constantly cross the border and the Irish Sea, many of them frequently, without showing passports. Noble Lords who travel only by air often forget this reality. But after Brexit if it happens, Irish policies on the free movement of labour will diverge from those of the UK and there will have to be an enforceable policy regulating the movement of persons.
My own guess is that if there is to be no hard border, any workable approach will require everyone in the UK—not just in the island of Ireland—to have a passport or equivalent secure ID, and to show it when performing significant life transactions such as taking up employment or opening a bank account. I do not think this needs to be a violation of privacy. It would provide less information for better defined purposes than the common practice of carrying a smartphone, but I am aware that this is a sensitive matter for many on the Conservative Benches. That is the sort of nitty-gritty matter which lies beneath the questions of the amendability of retained EU law post Brexit, particularly its adequacy in Northern Ireland. I hope the Government can bring forward an amendment to require compliance with the Belfast agreement in making any post-Brexit changes to retained EU law.
My Lords, it is always a great pleasure to listen to the clear, analytical thinking of the noble Baroness, Lady O’Neill.
The Bill implies a fairly radical impact on two areas that have always been at the centre of my concerns: one being Scotland and devolution, the other being agriculture and fisheries. My interests, as many of your Lordships will know, have meant a lifetime spent in farming livestock in Scotland, and I have just retired after five years as president of the National Sheep Association of the United Kingdom. We have heard today from all Benches in this House highlights of the major areas where the Bill will have its effects. I want to look at just two that are major for me. The first is how we deal within devolution with abolishing EU authority when European regulation was the central core of our legislative arrangements. Similarly, the second is how we see the management and support of our rural areas.
The noble and learned Lord, Lord Hope of Craighead, alerted the House to how far the present powers of the Bill simply will not do in the long term for Scotland and other devolved settlements. I am sure the promise made by the noble Baroness the Leader of the House in opening this debate that the Government already have in mind amendments that they wish to bring in offers some promise. But even if those will help us on our way, it is worrying to note the level from which we have started.
My noble friend Lord Bridges of Headley explained to us earlier the task that the Government were faced with in drawing up the Bill. Seen from that Westminster perspective, one can see how it was understood that these measures would give logical, incremental steps to overcoming the problems that leaving the EU will present. But the proposed powers provoke questions as well as answers. From the Scottish perspective—as the noble and learned Lord, Lord Wallace of Tankerness, was alerting the Government—it seems, for a start, that it does not fully fit in with the procedure for implementing legislation that the Scottish Parliament works under. Many noble Lords have centred their disquiet on the extensive Henry VIII powers that are presently contained in the Bill. But nothing has been said here today that matches the panic that the presence of these powers has triggered in the Scottish Government, with dreams of what they might be used for if there were a hostile Administration in Westminster. I know that that is not the plan at the moment, but from their perspective it is something that rears its head.
The briefing document on the Bill, issued by our own Library, said that the Government had issued to the devolved Administrations a list of the various measures that will have to be returned from the EU as we leave. The Library has very kindly provided me with a copy; the list contains 111 measures. This is only to underline the probable emphasis that will affect my second area of concern, which lies in agriculture, fisheries and rural life. Of these 111 measures, 43 will have a direct involvement in these areas. It is also the area covered in the various devolved Acts. Have the Government made it clear to the devolved Administrations how many of these measures they are already prepared to agree to hand over; and if not, why not? This is particularly true of the area which I have so recently been involved in, which is sheep. I think it is generally accepted that this is the section of agriculture that stands to lose the most from any departure from our present arrangements. I am sure many noble Lords are aware that this industry is reliant on Europe for setting present-day market prices. It is also reliant on exports for 35% to 40% of production. No deal could imply tariffs of up to 50% or £2 per kilo at the European border.
As a further illustration of the problems of the Irish border, which were emphasised by my noble friend Lord Patten a few minutes ago, our worries in this area are eclipsed by those of our farmers in Northern Ireland, who export an even bigger percentage of livestock and who might find themselves with a border with the Republic that would also affect not just exports but the very considerable trade there presently is in both directions at all times of the year across that border.
I look forward to seeing how much improvement we can make to this legislation in the coming weeks.
My Lords, the Bill raises fundamental questions about not just the Brexit process and accountability to Parliament but also, as the right reverend Prelate reminded us in an inspiring speech, our vision of a good society post Brexit. In the Article 50 debate, I spoke about the sense of loss felt by me and by many who wrote to me as we are stripped of our European citizenship and the fundamental rights it affords us. Membership of social Europe has contributed to many of the social and other rights we enjoy today. With regard to the current Bill, fears have been expressed by those speaking on behalf of, among others, women, children, disabled people, LGBT people and workers, and also about environmental protections. How far we are able to allay those fears by strengthening the protection provided for equality and human rights has to be a litmus test of the effectiveness of our scrutiny of the Bill.
The Equality and Human Rights Commission and others have proposed various ways of providing such protection, including the introduction of a constitutional right to equality; the implementation of a socioeconomic duty, contained in the Equality Act 2010; a means of keeping pace with wider European equality and human rights law; and inclusion in the Bill of a clause embodying the principle of non-regression of equality rights, as recommended by the Women and Equalities Committee, among others. On this last matter, the government amendment in the Commons does not go nearly far enough. It does not actually protect equality rights and it applies only to secondary legislation, despite the Minister’s commitment to the Commons that it would apply to primary legislation also. Can the Minister explain why the Government have reneged on that commitment?
The other main means open to us is to retain the European Charter of Fundamental Rights, the key piece of EU law expressly not brought over, contravening the Bill’s “general rule”,
“that ‘the same rules and laws will apply after exit as the day before’”.
I have read the debates in the Commons and, unlike the noble and learned Lord, Lord Brown, I have yet to find a convincing argument to justify its exclusion. We are told that it is unnecessary because it adds nothing new. It will not affect substantive rights, the Leader of the House assured us. But in fact it includes certain rights and principles not covered elsewhere in our legislation, referred to in the Commons as a third category of rights, such as the right to dignity and a number of important children’s rights, including the fundamental duty to give primary consideration to children’s best interests. Can the Minister say how this duty will be protected in the absence of the charter or the incorporation of the UN Convention of the Rights of the Child into UK law?
The Bingham Centre for the Rule of Law warns:
“We will lose fundamental rights protection in certain areas”.
It points out, as did Lady Hermon in the Commons, that, without the charter, the obligation in the Good Friday agreement to an equivalence of human rights protection in Northern Ireland and the Republic is undermined. Can the Minister explain how that equivalence will now be maintained?
Even if, for the sake of argument, it were unnecessary, as the Government claim, what would be lost by now responding to the wide range of organisations, led by the statutory body with the responsibility for promoting equality and human rights, calling for its inclusion? Like the Constitution Committee, I do not understand why an exception should then be made to the general principle of legal continuity. Of course redundant rights specifically connected to EU membership could subsequently be removed, so that is no real argument. As it is, the Government’s position will be seen a symbol of the weakness of their commitment to human rights, despite protestations to the contrary.
The other argument, that to include the charter would sow confusion and legal uncertainty, is contradicted by the legal opinion obtained by the EHRC; by experts on European law, including the group convened by the Bingham centre and the UCL Constitution Unit; and by the appendix to the JCHR’s commentary on the right-by-right analysis, referred to earlier by the noble Baroness, Lady Hamwee. They argue the exact opposite: that its exclusion is a recipe for legal uncertainty. Surely the Government’s aim, as set out in the rather unconvincing right-by-right analysis,
“to maximise certainty and minimise complexity”,
is better met by having all these rights codified transparently in one place.
The Government repeatedly fall back on the protection provided by the Human Rights Act to counter calls for the charter’s inclusion. But given their earlier desire to repeal the Act, forgive me if I do not take much comfort from a commitment to it that is limited to the lifetime of the present Parliament. Wherever we stand on our exit from the EU, I hope that we can be united in our commitment to a society built on principles of equality and human rights, and therefore ensure the retention of the European Charter of Fundamental Rights as both a symbol and a cornerstone of that commitment.
My Lords, during the referendum campaign I argued and voted for the UK to remain a member of the European Union. I still believe that to have been the better choice, but I and those who think as I do were outvoted, and I must accept that. However, the fact that we are leaving the EU leads me to certain general conclusions about the way ahead. I will touch upon these briefly, as they have been raised in this debate already and are relevant to my approach to the Bill before us today.
I start from the proposition that no one, not one single person on this planet, whatever their political persuasion, can be trusted with power. Of course some people have to hold power and wield it if systems are to work and society is to function effectively—but they should never be trusted while they hold it. Our constitutional solution to this conundrum is to ensure that qualifying citizens have the undoubted and frequently exercised right to throw out those who have the ultimate power to make the laws under which we live and by which we are governed—that is, Members of the other place.
The need for such a check on power is what makes me believe, with regret but very firmly, that, transitional arrangements aside, we cannot both leave the EU and remain within the single market and the customs union as they are currently structured. To do so would leave us exposed to the power of those who govern those institutions and subject to the costs which they would levy upon us, with no opportunity to influence their decisions or to hold them to account. We would be left in a position that in many respects would be similar to that which caused such distress to the American colonists in the 1760s and 1770s.
Equally, it is the need for a check on power that leaves me so very uneasy about several things that are proposed in the Bill. It would give the Government the authority to create laws without parliamentary authority and without adequate scrutiny. That already happens to a degree, but it is the unprecedented scale of the executive power now being sought that is of such concern to me. The Government will say that they need the ability to operate free of parliamentary constraint if they are to cope in a timely fashion with the unexpected twists and turns that they will encounter on the road to Brexit. I accept that argument to a point—but only to a point. Whatever the practical considerations may be, the kind of unfettered powers envisaged in the Bill are dangerous both in principle and in practice.
The stated purpose of the Bill is to ensure that the UK has a functioning statute book the day that it leaves the EU. Very well—that is of course important. But the statute book also has to contain laws that have been arrived at through due process. Nobody could reasonably argue against the requirement for effective laws, but that requirement by itself is insufficient. Effective laws are not necessarily good laws. The Government will perhaps argue that they have already conceded a degree of parliamentary scrutiny through amendments passed in the other place—but these are little more than a broken reed. They give Parliament no real power in the matter.
Having had experience of both sides of the divide, I know that government departments often view parliamentary oversight as a nuisance. They believe that it creates a lot of work over issues that are not of great moment. That can in some cases be true, but it is no reason for weakening such oversight. Like many other noble Lords, I suspect, I have seen a number of occasions when Ministers have used scrutiny override powers, citing the pressure of time. Sometimes the excuse has been valid, but sometimes just a little effort would have avoided the need for such an override. The pre-emption of parliamentary scrutiny has sometimes been a matter of departmental convenience rather than true force majeure.
With this in mind, I am forced to conclude that parliamentary scrutiny is of value only if it has real muscle—certainly much more than is proposed in the Bill. I entirely accept that it is all a question of balance. The trouble is that the proposals before us today are grossly unbalanced and imperil an important control within our democracy. I do not expect the Government automatically to do the wrong thing, but neither do I trust them always to do the right thing. I urge the Minister to think very carefully about the fundamental issues involved here rather than just about the short-term practicalities.
I will support no amendment to the proposed legislation that attempts to derail the Brexit process, but I will be inclined very strongly to favour any amendment that is intended to constrain the largely unfettered power with which the Executive have so unwisely sought to clothe themselves through the provisions in the Bill.
My Lords, this is a historic debate and I wish to claim my moment in history, just as I felt I was doing in 1979 when I was elected to the European Parliament—the first democratically elected international Parliament in the history of the world. Subsequently, as a Minister in your Lordships’ House, I participated in Council of Ministers meetings leading up to the Maastricht treaty, always hoping that the UK was playing a constructive part in building an economically strong, united and peaceful Europe. I concur with the noble Lord, Lord Krebs, about the often forgotten but most important peace dividend that our membership of the European Union has brought. The only good thing that can be said about the present realignment of our relations with our European neighbours is that it is not taking place in the wake of a war, as happened so often in the past.
We have been assured today that this is just a technical Bill and that, as my noble friend the Leader pointed out, there will be no change on the day of exit. In other words, it may be a change de jure but it is not a change de facto—at least, not to start with. That a transitional period is required if we want a smooth transfer is hardly surprising when we consider the way in which we have been working closely with our partners in the European Community, the European Economic Community and now the European Union for almost 50 years. To be in receipt of many and diverse briefings from organisations and individuals affected and concerned about this Bill illustrates the complexity of what we are facing and the way in which Brexit impinges on so many of our institutions, organisations and citizens.
As far as having a second referendum is concerned, I never want to see another referendum, and certainly not a referendum that brings about constitutional change without at least a two-thirds majority requirement. This is probably the only point on which I agree with my noble friend Lord Hamilton of Epsom, who sadly is not in his place to hear that. I shall follow with interest the arguments in favour of a second referendum, because it is important to understand the thinking of those who think it could work.
In scrutinising the Bill, I shall have particular concerns about the environment and the creative industries. The former has been raised today but not, so far, the latter. I am also taking an interest in the role of the devolved legislatures of the United Kingdom. The noble and learned Lord, Lord Hope of Craighead, put this issue in the right context when he said that this is a constitutional Bill, not merely an enabling Bill, because of the need to take into account the devolved legislatures that did not exist when we joined the European Community in 1973.
I shall concentrate my final remarks on the overseas territories. The noble Lord, Lord Luce, dealt comprehensively with Gibraltar’s special case. In the justified consideration of the border in Ireland, Gibraltar’s border with Spain has slipped out of the spotlight, and there is yet another forgotten border for which we are responsible: the border between Anguilla and France, in the shape of Saint Martin. There are other ways in which these tiny territories are affected. What about British Overseas Territories passport holders post Brexit? Will they still be able to travel freely throughout Europe? There is great concern about that.
At a meeting with parliamentarians from Bermuda today, a question was asked about the exchange of tax information treaties and the common reporting standards treaties which they are obliged to follow within the European Union. What about the European development funding that some of the overseas territories receive? Will that be replaced by direct UK funding? These may seem small matters affecting small groups of people, but they should not be overlooked, and I shall take every opportunity to remind the Government of the need to consult, inform and reassure the overseas territories to keep them in the loop, notwithstanding that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, would probably say that these are matters for the withdrawal implementation Bill—when, of course, I shall raise them again.
This has been an excellent and good-humoured debate so far, and I trust we can continue to avoid a bitter and acrimonious approach during future stages of the Bill. The right reverend Prelate the Bishop of Leeds struck just the right note on that at the outset, and we are indebted to him. I liked the quotation from Margaret Thatcher’s Bruges speech, referred to earlier by the noble and learned Lord, Lord Wallace:
“Our destiny is in Europe”.
I hope that, whatever happens post Brexit, we shall have a strong and enduring relationship with our European neighbours.