Second Reading (1st Day)
That the Bill be now read a second time.
Relevant document: 9th Report from the Constitution Committee
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 Without this, a large part of our law would fall away when the ECA is repealed.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
At end to insert “but that this House regrets that the bill makes no provision for the opinion of the people to be secured on the terms on which Her Majesty’s Government proposes that the United Kingdom withdraw from the European Union.”
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.