European Union (Withdrawal) Bill
(6 years, 10 months ago)
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Lord Bridges of Headley (Con)
My Lords, the years of Brexit are like dog years—each one feels like seven—so it feels like about a decade ago that I was sitting in DExEU talking to officials about the drafting of this Bill. Back then, the Bill, which cuts and pastes EU law into UK law, had been given the thoroughly Orwellian title “The Great Repeal Bill”, which is probably the best example of double-think that I have ever come across. The Bill’s title has changed but its purpose has not. To sum it up in one sentence, its purpose is to ensure that the UK leaves the European Union in a stable and orderly way.
I know full well that many of your Lordships have misgivings about various aspects of the Bill and many of those misgivings boil down to two words: parliamentary sovereignty. I have more than some sympathy, for when I was a Minister I struggled with some of the issues that the UK’s withdrawal raises, and perhaps I may focus on just two.
The first is the Henry VIII powers. I was, and remain, very wary of giving any Government Henry VIII powers but, if we are to leave the EU in an orderly way, I see the necessity for these powers so long as they have appropriate safeguards. That is why, as a Minister, I took the view that the powers should be limited and have a sunset clause, otherwise the Government would have the mother of all Henry VIII powers. No doubt they would be dubbed by the historians among us “the Elizabeth of York powers”.
Does the Bill get the balance right so that the Government have sufficient powers and Parliament sufficient scrutiny? We can and must debate that. Yesterday’s very thorough report from the Select Committee on the Constitution contains a number of points that certainly merit consideration by Ministers. However, let us not forget a simple point. If we were radically to dilute these proposed powers, the more primary legislation we might need to pass, the longer that would take and the more uncertainty we might create—more uncertainty and a greater risk of a disorderly exit. However one voted in the referendum, surely one thing that unites us is a wish for the process of our leaving to be orderly and stable.
The second conundrum is where powers lie once they have been repatriated to the UK. Here, the overriding aim must be to protect the integrity of the United Kingdom’s single market but, until the final shape of our new relationship is known, it is difficult to be completely clear about which powers currently held in the EU will lie where in the UK. This is why, as I have argued before, we must clarify the outline of the future EU-UK relationship in the current set of negotiations in Europe and we must have a transitional period during which all existing arrangements here in the UK and in our relationship with the EU remain the same. That will give us time to negotiate the details of the EU-UK relationship and we can resolve where repatriated powers should lie within the UK. We need to achieve this agreement with the EU about the transition and, crucially, the shape of the final agreement this year.
That brings me to my final point, which is also about those two words—parliamentary sovereignty. Four months ago, I asked a very simple question in this House: what is the country we wish to build once we have left the European Union? Only once we have answered this question can we properly and fully answer the second question: what agreement do we want to strike with the European Union? What do we value more—parliamentary sovereignty and control or market access and trade?
Four months on and there are still no clear answers to those basic, critical questions. All we hear day after day are conflicting, confusing voices. If this continues and Ministers cannot agree among themselves on the future relationship that the Government want, how can this Prime Minister possibly negotiate clear and precise heads of terms for the future relationship with the EU? My fear is that we will get meaningless waffle in a political declaration in October. The implementation period will not be a bridge to a clear destination; it will be a gangplank into thin air. The EU will have the initiative in the second stage of the negotiations and we will find ourselves forced to accept a deal that gives us access to EU markets without UK politicians having a meaningful say over swathes of legislation and regulation.
Some may say that this outcome would not be the end of the world. Some may say that it is inevitable. My point is this: at this pivotal moment in our history, we cannot—and must not—indulge in that very British habit of just muddling through. With under 300 working days left until we leave the European Union, we need to know the Government’s answers to these simple questions. They go to the heart of the matter: the powers of this Parliament and parliamentary sovereignty. The Government must be honest with themselves and the public about the choices we face. Then, the Prime Minister and her Cabinet must make those choices. As has been said, to govern is to choose. As we face the biggest challenge this country has faced since the Second World War, keeping every option open is no longer an option.
Lord Falconer of Thoroton (Lab)
My Lords, it is an honour to follow the noble Lord, Lord Bridges of Headley. Far from seeming like seven years, it seemed like about six minutes; that was such a good speech. Thank you to the usual channels for making it possible for me to speak in the debate.
I do not think it is for this House to thwart, or seek to thwart, Brexit because we would have preferred a different outcome. There may come a time when opinion manifestly shifts, but now is not the time, this is not the Bill and this House is not the Chamber to make that judgment. Parliament must therefore act to give effect to the referendum. This Bill is necessary in principle to incorporate EU law into our domestic law, as the noble Lord, Lord Bridges, said. It is also necessary to ensure a proper and orderly process is followed in Parliament, to ensure that Parliament agrees the terms of the withdrawal Bill.
The necessity of the Bill is matched only by the disastrous attempt to implement both of those purposes. The Bill provides for no meaningful vote for Parliament on the withdrawal Bill. It gives the Executive unnecessarily wide powers to change our laws in ways that would be regarded as unconstitutional in any other Bill. It leaves the judges to make key decisions that should be made by the legislatures. It uses the Bill as an illegitimate means of amending the devolution settlements. I will say nothing further about the devolution settlement except that I was deeply impressed by the speech of the noble and learned Lord, Lord Hope of Craighead.
In this House, we should be willing to amend the Bill extensively so that the House of Commons may think again. From the speeches we have already heard, there appears to be widespread support on a whole range of issues. The bigger the majorities in this House and the more they are supported by Conservatives, the more likely it is that we will influence the outcome and the more likely it is that post-Brexit Britain will be better. I place particular importance on ensuring that the Bill makes provision for a meaningful vote in Parliament—meaning the Commons. In my book, a meaningful vote means a vote that in effect mandates the Government to take a particular course. There is no point in a vote that can take place only at the end of the process; the consequence of the Commons voting down the deal that the negotiators come back with is that we then have no deal, which is almost the worst outcome we could have. It must be made clear that before any deal is finalised, the Commons should get the opportunity to mandate the direction of the negotiations. By that, I mean that if the Executive wants a Canada-style deal but the Commons wants a Norway-type deal, it must be clear that the Commons view should prevail, not that of the Executive.
With every day that goes by, that becomes a more important consideration in the way the process goes. We have a Prime Minister who is home alone in No. 10, without any allies at all—as far as we can see—not willing to tell anybody what our negotiating stance is. When asked by Chancellor Merkel of Germany what the UK’s position was on the trade negotiations, she replied, “Make me an offer”. I can understand why she would not want to tell anybody what her precise bottom line was, but I would have thought that a point would be reached at some stage where she has to tell the counterparty what she actually wants from them. So we have a Prime Minister who is not able to lead and a Cabinet, some of whom appear to think they are in the film “La La Land”, engaged heavily in either cherry picking or having their cake and eating it, while the others appear to think they are—and it is good to see the noble Lord, Lord Dobbs, in his place—in “House of Cards”, where their only concern is how to manoeuvre in a forthcoming leadership arrangement.
Leadership must come from somewhere, and the only place it can come from is the Commons. If the Government know that they must get the approval of the Commons to any deal or basic framework that is introduced, it will focus their mind and make it clear that they will go to the EU only with a proposal that will get through the Commons. It will also give this country a stance that has credibility in the eyes of the 27. More and more, when you speak to people in the 27 who are engaged in the process, they say, “What is the point of dealing with a Government who have no life left in them?”. If they see that the deal definitely has to be agreed by the Commons, they will think that there is some focus of power that gives political credibility to the deal. It is very important that we look at that point. Clause 9 is the relevant provision in the Bill and it does not provide for a meaningful vote.
I mention only one other point in these short remarks. Everyone agrees that these Henry VIII powers are excessive, unnecessary and unconstitutional. I have heard many suggestions about what we should do and I support many of them, but there are two key points. First, the Bill must be amended in relation to all the Henry VIII powers so that they can be used—we need some of them—only where “necessary to make EU law work in the context of domestic law” and, secondly, where they have “only a technical effect”. Anything wider goes beyond our constitution because it requires the Executive to make significant policy choices through secondary legislation. The corollary of that not being the approach of this Government is that I have no doubt that this House would be much more willing than previously to reject secondary legislation under this Bill to ensure that there is proper use of primary legislation. If the Government choose to change the constitution, so can this House.
Lord Steel of Aikwood (LD)
My Lords, I apologise that I missed the later speeches this morning because I was attending an event at which our old friend Shirley Williams was receiving an award. I found myself sitting next to Baroness Trumpington, who greatly misses the House. She assured me that, had she been here in this debate, she would have been giving this Bill hell, and I can well believe that. She encouraged me and reminded me that, in her post-Bletchley years, she spent her life trying to piece together the bits of Europe, like Lord Carrington who was quoted earlier in this debate.
Last week, we had a debate on devolution and Europe, and the noble Lord, Lord Lang of Monkton, made a shrewd point when he said that it was a bit like having a Committee stage debate before we had the Bill. I plead guilty to doing the same again today, because I want to concentrate on one issue only: the effect that the Bill has on the Scottish Parliament.
The Scottish Government were promised an amendment to the Bill in the House of Commons. That never happened. The excuse was given that Damian Green had left the Government, so there was a bit of chaos. Chaos is almost the middle name of this Bill. It was not a very good excuse. I believe that the Scottish Government have been treated rather badly throughout this whole process. In the beginning, the Joint Ministerial Committee set up a European sub-committee, which was to meet monthly and to oversee the negotiations. In fact, it met monthly until February last year, when it suddenly stopped and did not meet again until October. Again, an excuse was brought forward—that there was an election. Come on, was it an election taking eight months? That was another excuse that did not wash. My noble and learned friend Lord Wallace of Tankerness pointed out to the House that the principle of the Scotland Act of 1998 is that everything is devolved to the Scottish Parliament unless it is specifically reserved by statute in the schedules to that Act. This Bill cuts across that principle, in my view.
There is a serious problem, particularly with Clause 11. This is not just the view of the SNP in Scotland; it is the view of the Scottish Parliament as a whole. Its constitution committee said that Clause 11 of the Bill is,
“incompatible with the devolution settlement in Scotland”.
Now, the devolution settlement has worked extremely well, as the noble and learned Lord, Lord Hope, was arguing. We were debating that way back in 1997-98, when I came into the House, and very good debates they were. I think that Bill has turned out to be very satisfactory, but the genius at the heart of the devolution settlement, which was endorsed by the Scottish referendum and encapsulated in that Act, was that it gave a stable and sensible form of government. The trouble with Clause 11 is that it sweeps up the entirety of EU law and puts it beyond the powers of the devolved legislatures, and I think that is not really acceptable.
My noble friend pointed out that, when the Canadian Government were involved in the trade agreement across the Americas, they made sure that the provincial legislatures were in on the negotiations. Of course, they have a proper federal constitution and we do not, but that is still the principle that should have been adopted here. In the debate on Thursday, the noble Lord, Lord Kerr of Kinlochard, lamented that the SNP has no representation here in the House. It is now unacceptable, when the SNP forms the Government in Scotland, that they do not have anyone here in the revising chamber. That is largely their own fault, but the noble Lord, Lord Kerr, said, and I agree, that if the Burns committee report proceeds and the Government agree to the principle that future peerages are of 15 years, at that point the Scottish Government should reconsider their position and bring their voices to this Chamber. In the meantime, it is up to the rest of us to voice their concern, which is that of the Parliament as a whole and not just the SNP. The Conservative Members of the Scottish Parliament in particular fully support their constitution committee. It was a unanimous report that I quoted from a moment ago.
Earlier, the noble and learned Lord, Lord Hope, spoke much more eloquently on this subject than I do. He is quite a remarkable man, because he gets away with saying things that the rest of us would not be allowed to say. He has that air of judicial authority and scholarship. When he says that King Henry VIII did not go to Scotland and Oliver Cromwell did, it is a devastating reflection on the state of this Bill. It is not the Henry VIII powers that matter; it is the fact that Oliver Cromwell dispensed with Parliament altogether. What this Bill does is to dispense with the Scottish Parliament. That is why it is unacceptable, and that is why we must have an amendment during Committee that puts right a totally unsatisfactory Bill as it stands.
Lord Krebs (CB)
My Lords, I had been intending to talk exclusively about the impact of this Bill on the environment and climate change, but earlier the right reverend Prelate the Bishop of Leeds reminded us that the process that this Bill supports is about a broader matter than translating legislation and instrumental processes. It is about what kind of country we want this to be and what kind of Europe we want to see in the future.
I hope noble Lords will indulge me for a moment if I recount a piece of my family history. My father was a refugee from Nazi Germany, who came here in 1933 and was lucky he survived—many of his relatives did not. One individual in the family who survived, remarkably, was his sister, who survived throughout the war in Germany and still lives there. I went to see her just before Christmas and we had a conversation about Brexit. I asked, “What do you think of what our Government are doing?”. She looked at me and said, “In March 1945, my mother and I hid in the cellar of our home because there was an allied bombing raid. We came up in the morning, our house had disappeared completely, the street had vanished completely, the centre of our city had vanished completely”. She went on to describe how, in the subsequent weeks, she and her mother tried to move across Germany with no transport—no railways, no roads, no petrol, nothing. Even to get a bar of soap, she had to sell the carcass of her pet dog. She said to me, “Any Government who want to begin to take apart the structure that we put in place to prevent this happening again must be mad”.
I shall switch now from a broader issue to the rather narrow issue of environmental legislation. We are told that the Bill is about continuity. It is to enable things to operate as they did before on the day after Brexit. As noble Lords will be aware, almost all the legislation that protects our environment, including air quality, marine and freshwater quality, protection of species and habitats, waste disposal, noise pollution and soil quality, comes from the European Union. Defra estimates that there are more than 1,100 pieces of EU legislation within its ambit. At the moment, the enforcement of environmental law is overseen at European level and it is acknowledged, including by the Government, that after Brexit there will be a governance gap.
Take our beaches as an example. Under the bathing water directive, the UK originally designated fewer areas as bathing waters clean enough to bathe in than did Luxembourg. Even Blackpool beach did not make it on to the UK’s list. As a result of Commission enforcement, the UK has increased the number of bathing waters designated from 27 in 1987 to 362 today. The Institute for Government reports that some 29 of the 63 judgments—that is 46%—handed down by the ECJ on UK infringements since 2003 related to the environment. So enforcement by the European Commission and the ECJ has been crucial to our transition from the dirty man of Europe to the place that we are today.
The Government, as I say, have recognised this governance gap and are consulting on the nature of a new body to ensure that environmental standards are maintained and enforced after Brexit. Yesterday, we had a very good debate in this House in which the Minister the noble Lord, Lord Gardiner of Kimble, said that this would be a statutory body, which I think we all very much welcomed. I hope that that will be confirmed by the Minister at the end of this debate. The crucial thing for this Bill is that the new statutory body will be in place, ready to take action, immediately after Brexit. We do not want to say that it is six months or a year until it comes into place; it has to be there on the day we leave.
Other concerns need to be explored in Committee, and I do not intend to elaborate on those now. The noble Baroness, Lady Jones of Moulsecoomb, said earlier that it is not clear in the current drafting that all EU law will be fully transposed. Clause 2 saves transposed directives; Clause 3 converts regulations; and Clause 4 saves other rights and obligations if they have been recognised by case law. We need some explanation of what the implications of that are. As the noble Baroness, Lady Jones of Moulsecoomb, said, the principles of environmental law such as sustainable development, the precautionary principle and the polluter pays principle may be lost, as these are currently in the preambles; they should be retained. If they are not, future decision-making by public bodies or by government may result in weaker protection of the environment.
In closing, I turn to energy and climate change. We have our own national legislation on climate change, the Climate Change Act 2008; nevertheless, some of our energy security and decarbonisation depend on our relationship with the rest of Europe, the EU Emissions Trading Scheme and the internal energy market. As far as I can see, these are not covered by the withdrawal Bill. In fact, in the Select Committee that I sit on—excellently chaired by the noble Lord, Lord Teverson—the Energy Minister told us recently that, although we were going to leave the internal energy market,
“our top priority is to be as near as possible to the current arrangements”.
That makes you wonder whether the simplest way to achieve this is not to leave in the first place.
Lord Willoughby de Broke (UKIP)
My Lords, it is a pleasure to follow the noble Lord, Lord Krebs. I do not, of course, agree with his conclusions.
I welcome this Bill as an important step towards leaving the EU in 14 months’ time—no more than that. It cannot be an attempt to thwart the result of the referendum. I remind some noble Lords that the British people voted to leave in a referendum with a turnout of more than 70%. They knew what they were voting for. In spite of the warnings in the propaganda leaflet sent to them by the Government a couple of months before the referendum, they still voted to leave.
The British people voted to leave in spite of the dire warnings—the warnings of disaster—wheeled out by the then Prime Minister, David Cameron; the then Chancellor; the then President of the United States, “back of the queue” Obama; the fragrant Christine Lagarde, president of the International Monetary Fund; and the Governor of the Bank of England. We were warned of the disasters that would befall us if we were rash enough to vote to leave: a stock market crash, plummeting inward investment and soaring unemployment. It turned out that those forecasts were about as accurate as a cross-eyed javelin thrower. Unemployment is at a record low. The stock market is at a record high. Industry has the fullest order books for 30 years. Inward investment remains very high, as it was before the vote.
With the gloomsters so comprehensively defeated, why do our negotiators in Brussels persist in the pre-emptive cringe approach? I do not understand it. We have a strong hand to play, but we are playing it very badly. Why are we agreeing, for example, to pay the EU any money at all to access the single market? No other country does this—not Switzerland, India or America. Why are we doing it? We are in a very strong position. We have a trade deficit with all the other major economies in the EU. Perhaps we should be charging them for access to our markets. I do not see why we should not do that, on the same basis as they are trying to charge us for access to their markets.
For example, we had a trade deficit of £26 billion with Germany in 2016 alone. Surely, this sort of deficit, which they have with us, gives us some leverage in the current negotiations. I can, however, see no sign at all of that being used, and I wonder whether we should listen to our closest ally, America, in the form of Donald “front of the line” Trump. He said, in an interview in Davos, that he would not have negotiated the way we are negotiating: he would have been much tougher. I really wish that our negotiators would listen to that and drop the pre-emptive cringe.
The referendum has happened. The decision was to leave. We decided that we did not wish to be part of a supranational regime run by a European Commission priesthood that we did not elect and cannot get rid of. We did not wish our laws to be overseen by a European Court of Justice with an entirely different legal system from ours, and we wished to remain in control of our own borders and our own immigration. Those were the three principal points in the referendum. Parliament’s duty is to implement that choice—the choice made in the referendum—and so is the Government’s. I remind the Conservative Government what happened to the Conservatives after the repeal of the Corn Laws: oblivion.
Viscount Trenchard (Con)
My Lords, surely the single Act of Parliament which created the largest number of delegated powers was the European Communities Act 1972. I am therefore surprised that noble Lords do not welcome the fact that the Bill brings many powers back to this Parliament.
The Prime Minister has rightly recognised the need for an implementation period of about two years. The Government prefer the term “implementation period” but others refer to it as a transition period. What is vital is that we must make serious progress towards agreeing the end state before we agree the interim measures. How can we determine what needs to be agreed for the implementation or transition period without at least knowing the broad outline of the definitive free-trade agreement that we expect to have in force at the completion of that period? Can my noble friend the Minister encourage the Government to be bolder and more confident in talking about their vision for the future of the United Kingdom in resuming its place on the world stage as a strong advocate of free trade, which is an absolute necessity in bringing about greater prosperity and the alleviation of poverty, wherever it exists?
Could we not talk more about our markets? In manufacturing, many German and French companies, and subsidiaries of both British and third-country companies operating on the continent, are concerned that their Governments are not doing enough to encourage the EU to ensure open access to the UK’s markets. Services account for more than 80% of the UK economy. The largest part of this is financial services, centred on the City of London. The City has become the world’s leading financial centre, not because we are in the EU but because of many reasons that will continue to apply after we have left the EU. The EU’s negotiators know this; we should call their bluff. If they insist on introducing impediments to free access for Europe’s companies to our capital markets, their companies and their people will suffer.
As recognised by the European Union Committee in its report published last Friday, the UK and the EU negotiators should favour an end state which allows mutual market access. Fragmentation of London’s financial markets would lead to increased costs and a deterioration of financial stability. The EU seems intent on relocating the euro-clearing activity of central counterparties to the EU. But the United States is content for dollar-clearing activity—and Japan is happy for yen clearing—to take place here. Even China seems to take pride in the increasing volume of renminbi transactions taking place in the world’s most efficient financial marketplace. The EU alone is putting political objectives ahead of economic common sense in seeking to bring about the disintegration of London’s financial markets.
London’s markets do not belong to Europe; they do not even belong to the UK. They belong to the world. We host these markets here on behalf of the world. Our regulators, the FCA, the PRA and the Bank of England, will have a commensurately greater influence in the framing of financial regulation in international bodies such as IOSCO once they are restored to the level of independent national regulators. I believe that London’s future continued success as the world’s leading financial centre depends upon our recovering the freedom to adopt a somewhat less dirigiste style of regulation, which will make our markets more attractive to investors and borrowers located in the faster growing economies of the world.
It is of course necessary, as we are often and properly reminded by the City of London Corporation and the industry representative bodies of the City, to secure early agreement of transitional arrangements to reduce the risk of business unnecessarily and pre-emptively deciding to move people and businesses to Europe.
We also need to agree a bespoke deal delivering mutual market access. We have now a position of complete convergence, so it should not be so difficult, as is often claimed. We should make it clear that we will continue to allow EU financial institutions to operate in London on the basis that they do now, in the expectation that mutual regulatory recognition will continue. As advocated by the Legatum Institute, dual regulatory co-ordination mechanisms will in any event be necessary for our future FTA.
The City of London Corporation rightly points out other areas where continued mutual recognition of standards is clearly important for both the UK and the EU. These areas include legal services and the flow of food and feed products through London’s ports. The City also recognises its need to continue to have access to talent under the terms of the future immigration Bill. It needs the most talented individuals to work not only in financial services but across the sectors, including the creative sector.
Lord Bassam of Brighton (Lab)
My Lords, I start with a confession—actually, two. It is a while since I have done this. Back in 1975, I made a decision to vote against Britain being part of the EEC. That decision was as wrong then as I believe Brexit is wrong now. I never thought I would end up taking part in a national debate 42 years later seeking to preserve much of what we have gained in the intervening years.
We must respect the outcome of the referendum, and our primary task now has to be to limit damage. Labour’s historic role will be to protect jobs and the economy. Others in this debate are better qualified than I am to talk about the long-term impact of leaving the EU on the UK economy, but already there are worrying signs. We should have no truck with the ready complacency of David Cameron, the PM who I believe led us to the worst post-war policy decision—barring perhaps the Suez invasion.
In the face of this, what should we—the unelected House—do with the Bill? It would be wrong to reject or emasculate it. Leaving the EU will happen. The questions are: what are the terms of our leaving and how can we mitigate the damage? We need to be on-side with the national interest, and we in this House should be mindful of our role in protecting the constitution. In truth, the Bill is an alarming, incoherent concoction in need of improvement before we send it back, amended, to the other place. We should be unafraid of that task.
The Constitution Committee has done a great service in providing noble Lords with a route map; it is one that we should follow. Much of the critique is legal and technical, not about policy, but that does not mean it is unimportant. Getting the law and its application right will have a direct impact on how post-Brexit policy is determined. For that reason, what your Lordships’ House does with the Bill is of central importance to the future prosperity of our nation. For example, if we let the Government off the hook on EU-derived rights and the European Charter of Fundamental Rights, protections on consumer law, environmental protection and workplace rights, we will have failed in our duty as a revising Chamber. If we cannot secure a properly balanced means of transposing EU law without recourse to arbitrary Henry VIII powers, we will have weakened the protection of the public and failed in our duty. If we cannot secure a transitional period based on current terms within the single market and customs union, we will harm our economy and the national interest.
Before we get attacked by the likes of Jacob Rees-Mogg or the Brexit Minister, Mr Baker, I ask them to think first and reflect on the proper role of the second Chamber. It is our patriotic duty to send large parts of the Bill back for reconsideration. Labour has rightly set out its red lines, and they are likely to be shared across the House. They will include: a meaningful vote at the end of negotiations; ensuring a role for Parliament in the event of no deal; a time-limited transition period on current terms; enhanced protection for EU-derived rights and protections; limiting the scope of Henry VIII powers; and the removal of the Government’s exit-day clause to give our negotiators flexibility. There will be other amendments on other issues. A mechanism for consideration of SIs recommends itself and comes from the Constitution Committee’s report. In that regard, I hope the noble Baroness the Leader of the House goes further than her tentative proposals this morning.
Securing the balance between the devolved Administrations’ powers and responsibilities and the duties for the UK Government as a whole will be a major test, as will be ensuring that the EU border with Northern Ireland is frictionless while it protects the rest of our economy. These are not trifling issues; they are matters our Government have not handled well. We should remind ourselves just how close they came to falling at the first hurdle over the border issue. Being in hock to a small party is never a wise course.
Turning again to the recommendations in the Constitution Committee’s report, my untutored eye concluded that at least 13 are a basis for amendments. One in particular commends itself: that which proposes that all retained direct EU law should have the status of domestic primary legislation. This would secure legal continuity and certainty post Brexit, as my noble friend Lady Taylor explained this morning.
I have three final three points. Though not a policy issue in this Bill, I and other noble Lords will want a coherent explanation of how frictionless trade can be achieved without membership of the customs union or a single market. Without it, our economy will be damaged, as reports from the Brexit department yesterday finally admitted. I also hope to probe and push the issue of refugees during the course of this Bill. The EU may not have covered itself in glory on this, but it has had a strategy, and without one I fear for the future and safety of young unaccompanied children. In 2016, 30,000 of them arrived in Europe. Without effective access to an asylum system or legal routes of transfer, such as Dubs and Dublin III, they will continue to be alone and unprotected. We need a humanitarian structure that protects these most vulnerable citizens. The Government should set out exactly how, in a post-Brexit world, this will work. To date, they have singularly failed to do so, to their shame, and our reputation as a compassionate nation has been damaged.
I am no fan of referendums. In my view you should use them sparingly. I take the view that if you do not know the answer to the question, you do not ask the question. That was Cameron’s historic blunder. The Motion moved by my noble friend Lord Adonis invites us to support one on the final deal. Like our Front Bench, I am not minded to support the Motion, and I suspect others will similarly resist the temptation but, like others, I think it unwise to rule one out.
The Bill, as many have observed, is mostly about process, not policy, and thus something of a Brexit sideshow, but it is important. The Constitution Committee says that it is fundamentally flawed in multiple ways. It can be improved and become a vehicle to restate common values which the EU at its best has achieved. This is how I believe we as a House should approach the Bill. In the absence of a Government with a strategy even for their own legislation, it is up to Parliament to provide clarity and a sense of purpose, and to bring some cohesion to what is before it. That is our historic task.
Lord Taverne (LD)
My Lords, not for the first time I shall express a minority viewpoint. I believe that there will be no deal. The excellent report by the EU Select Committee Brexit: Deal or no Deal pointed out the devastating consequences of no deal but did not address its likelihood—and if it is even a possibility this Bill requires major amendment.
Why is no deal likely? The Government envisage three stages of Brexit. Stage 1 is agreeing a framework for a new relationship with the 27 before the Article 50 leaving date. Stage 2 is, as part of a transition agreement lasting two years, a standstill period during which we negotiate the details of the new relationship and meanwhile preserve the status quo. Stage 3 is an implementation period to allow business to adapt to the new relationship.
At the moment, the Cabinet and the Tory party are hopelessly divided about the nature of the new relationship they seek—and if they fail to agree there will just be no deal. They are also divided about the meaning of the status quo. If it means staying in the customs union and the single market and accepting the obligations of both, it means paying our dues and accepting the jurisdiction of the European Court of Justice and any regulations and directives made by the EU. As two unlikely allies have pointed out, Britain would become a vassal state. The noble Lord, Lord Kerr, was the first to coin the phrase, which has now been echoed by Jacob Rees-Mogg.
But the alternative touted for a soft Brexit of a new kind of customs union with a frictionless border is not regarded as credible by anyone outside Britain, while access to the single market without its obligations—a kind of bespoke new single market—will be unacceptable to the EU. Mrs Merkel and many others have often pointed this out, but the Government have not heard them.
Moreover, since the Government have ruled out even temporary membership of the customs union, the problem of a hard Irish border, fudged last December, remains insoluble. Since the 26 have promised full support for Ireland, this issue alone will mean no agreement—and no agreement with the EU on the framework means no deal. Furthermore, the transition agreement with the EU will be far more complicated than the Government envisage. A period of two years is unlikely to prove long enough—and, again, if it is not agreed before the leaving date there will be no deal.
The crucial question, if there is no deal, is when the meaningful vote by Parliament will take place and what the choice on offer will be. As for when, it must be before October—before we leave—as it must allow time for approval by the European Parliaments. The choice cannot be what the Government seem to envisage: either accepting or rejecting no deal. Accepting means leaving; rejecting cannot mean telling the Government to go back and renegotiate. That would be wholly unrealistic. The only real alternative would be either withdrawing Article 50 or holding a new referendum, when it would this time be clear what Brexit actually means. As the noble Lord, Lord Butler, observed earlier, we will need an amendment to the Bill to ensure that the choice of a new referendum is part of a meaningful vote by Parliament.
Lord Kakkar (CB)
My Lords, I thank the Leader of the House for the thoughtful way in which she introduced the debate and the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Newby, for having achieved an important degree of consensus on some important principles. They are that it is of course absolutely essential, and the duty of the your Lordships’ House, to scrutinise very thoroughly the legislation before us, which will have an ongoing and fundamental impact on the rights and lives of our fellow citizens for many generations to come, but at the same time that your Lordships’ House should not, and probably will not, use the Bill to in any way undermine the authority and primacy of the House of Commons. We have the right of course to revise and to ask the other place to think again, both about issues that it has already considered and about the many issues in the Bill that it has not properly scrutinised, but it would be completely wrong ultimately to frustrate the will of the other place in any way.
In the context of those simple principles, I will touch on two areas, although there are of course many that will require important scrutiny. The first deals with regulations that are important to our national interest—in this regard, regulations that relate to the question of clinical trials. In so doing, I declare my interests as a professor of surgery at University College London, director of the Thrombosis Research Institute and an active biomedical researcher.
The current clinical trials directive, which has been transposed into domestic legislation, has been much criticised because it is considered to have thwarted and undermined in many ways the ability of our country to perform clinical research at the most efficient level. As a result, quite rightly, new clinical trials regulation has been considered and developed. Our own research community made substantial contributions to the development of that regulation, and it is a much better piece of legislation. That is recognised to be a good thing. It was due to be adopted across the European Union in October 2018, but there has been a delay to its adoption and it will now not be applied until later, in 2019.
As a result, the legislation that deals with the conduct of clinical trials, which is vital to delivering healthcare in our country and to our life sciences industry, will be retained legislation with the current directive. As far as I can see, there is no mechanism for a regulation that has been agreed but not yet applied across the European Union on the day of exit to be dealt with under the Bill.
I therefore ask Her Majesty’s Government how they will deal with that question, which is of considerable importance. There may be other areas where we, in our national interest, have agreed or will in the coming months agree regulations that will not be applied by the Union by the time of our exit from the European Union. As far as I can see, the Bill does not deal with that.
Clause 6(2) deals with the regard that courts and tribunals should give to the development of European law which, at the time of exit, has become retained European law but which is further developed thereafter by the European Court of Justice. Here I declare my interest as chairman of the Judicial Appointments Commission. The Bill proposes that the courts and tribunals do not have to take account of the further development of law beyond the time of exit, but they may do so if they think it appropriate. That seems a confusing and dangerous proposition.
Inevitably, and quite rightly, the European Court of Justice will continue to develop its law with the interests of the European Union, both political and economic, firmly in mind. Those issues may be quite different to our national interest, but the Bill proposes to leave the judiciary to make the decision about whether they should pay attention to this matter and what weight they should give to it—that is, the development of law beyond the time of exit from the European Union. As your Lordships’ Constitution Committee identified, that risks drawing the judiciary into areas of political controversy. Parliament has rightly taken the view that there should be a separation of powers, that Parliament is sovereign, that Parliament is responsible for matters of political policy and for the establishment of statute and that it is for the courts thereafter to interpret the law and apply it.
It therefore seems wholly counterintuitive for this Parliament to take the judiciary—an important part of our constitution—to a place where it may be drawn into political controversy, as a result of which there may be a loss of confidence in our independent judiciary and a loss of morale. That would be a terrible consequence of departure from the European Union and, as the Constitution Committee rightly identified, it is a matter that needs to be carefully scrutinised. The committee identified a potential solution—there may be others—but clearly it is a matter that your Lordships’ House will need to consider in detail and potentially ask the other place to consider once again its position on this matter.
Lord Lang of Monkton (Con)
My Lords, like the noble and learned Lord, Lord Falconer, I am grateful for the opportunity to speak in this debate after an apparent mishap or two with the speakers list.
I have two general points to make. The first is about the nature of the Bill. I agree with the noble Baroness the Leader of the Opposition who, at the start of the debate, made the point that the Bill is poorly named, which is perhaps why it has attracted measures of criticism and mischief elsewhere for what is largely a technical Bill which does not deserve that kind of treatment. I would have called it the “Transposition and Rehabilitation of Legislation Bill”—that might be suitably dull and boring to head off some of the worst troublemakers. It is a technical Bill, and I suggest that it would be quite wrong for this House to treat it either as a proxy for the battle over our departure terms from the EU or even for whether we should depart at all.
Departure from the European Union was given effect by the invoking of Article 50 last March, approved by Parliament. That followed a referendum, also approved by Parliament; and afterwards, all parties undertook to support the result. Much is read into what the electorate might have meant by their vote, but the question they were asked was not, “Shall we leave if we cannot get a good deal?”, or, “Shall we remain unless we can stay in the single market?”. The question was simple and unqualified: “Leave or remain?”. And the electorate chose to leave.
Despite an aversion to many aspects of the European Union, I had voted remain on economic grounds. But once the electorate delivered the verdict that we, in our wisdom, had devolved to them, I took the view that I am glad to hear reflected elsewhere in the House today—that we must accept it and implement it, with the best deal we can achieve. In that context, I particularly welcome what my noble friend Lord Bridges of Headley said—that the negotiations need to be got a grip of, and a clear way forward mapped out, as soon as possible.
This Bill—complex in nature, constitutionally important and administratively essential—is a consequence of the referendum decision. I support it, not as the trigger for our departure, nor to affect future relationships with Europe, but simply to sort out the legislative consequences of departing, to protect the rule of law in this country, and to seek legal certainty and continuity from the moment we leave the European Union by bringing home all the legislative measures that have accumulated there over 46 years. Without it, there would be chaos.
My second point concerns the drafting of the Bill and its implications for the balance of power between Parliament and the Executive. The Constitution Committee has—uniquely, I believe—produced no fewer than three reports on the Bill. The first—over a year ago, when I had the honour to chair the committee—was produced before the Bill had even been published, such was our concern about what its terms might be. The latter two were under the admirable chairmanship of my successor, the noble Baroness, Lady Taylor of Bolton. The latest report, published yesterday, has been forced to conclude that the Bill is “fundamentally flawed” in multiple ways. If that is so, we are clearly right to be concerned, and to remain so.
Now is not the time for detail, but we recognised at the outset that—unavoidably, given the scope, scale and complexity of the task—the Government would need additional delegated powers over secondary legislation. We also listed a broad range of protective constraints that would be vital to balance these. Some have been secured, but the noble Baroness, Lady Taylor, has listed an impressive list of what still needs to be done. I continue to support her approach and that of her committee on this important matter.
On the devolution issues, some of which were debated in the House last week, I hope the Government will listen very closely to what the noble and learned Lord, Lord Hope of Craighead, said. His analysis, surely, cannot be bettered. Essential though it is that the Bill passes into law, I conclude that, should it be used also as a means for the Executive to gain permanent new legislative powers at the expense of Parliament, that would be a dire price to pay, in the long run, for the sake of restoring what one may soon be able fondly to refer to once more as “the law of the land”.
Baroness Massey of Darwen (Lab)
My Lords, I shall today discuss some of the implications of Brexit on children and families. I define children as being up to the age of 18, based on a number of agreed conventions. Laws relating to families and children are a vital part of our justice system. They vary in the devolved nations but form a structure which has been important in protecting children and resolving family disputes.
A paper by the law firm Resolution, prepared with the Family Law Bar Association, points out that there are approximately 140,000 international divorces and 1,800 cases of child abduction in the EU each year. Their opinion is that the European Union (Withdrawal) Bill could create problems for tens of thousands of people. We must place a requirement on the Government to report to Parliament on how the rights afforded by EU family law will continue to exist in UK family law and how progress is being made. Clause 6 must be amended to retain the ability to refer to the CJEU in family law on the basis of reciprocity.
I looked recently at the debate on the EU Committee report Brexit: Justice for Families, Individuals and Businesses?, which was held in December last year. The committee was chaired by my noble friend Lady Kennedy of The Shaws, who spoke of the civil justice co-operation between European states. As she said, it works, yet we seem to know little about the Government’s thinking on such complex matters.
The noble Baroness, Lady Shackleton, from the Conservative Benches, spoke of,
“a recipe for confusion, expense and uncertainty, particularly in family law”,
stating that,
“the UK’s family law system post Brexit is, to put it mildly, disappointing”.—[Official Report, 20/12/17; cols. 2122-23.]
The noble Baroness, a respected practitioner in this field, gave telling examples of such confusion. I am horrified to think that disputes over the custody of children, residence rights and safeguarding issues are likely to become more complex after Brexit. Children deserve better. They often find themselves innocent victims of situations they have not created.
Coalitions of those concerned for children’s rights in the UK are putting forward challenging demands for clear and consistent explanations of what the scenario will look like after Brexit. I am grateful to them for their advice and support. Measures in Wales, Scotland and Northern Ireland may well be affected, as much of EU law affecting children is likely to be repealed or amended through the use of delegated powers. A recent report by a law firm for the Children’s Rights Alliance and the Children’s Law Centre in Northern Ireland analyses clinically the whole scenario, including education and the Good Friday agreement. It makes uncomfortable reading.
Our domestic laws, embedded in the Children Acts 1989 and 2004 and the not yet in force Children and Social Work Act 2017 are, of course, welcome, but they do not cover the full range of children’s entitlements in EU law. The EU Charter of Fundamental Rights, the EU Convention on Human Rights, and the UN Convention on the Rights of the Child, ratified by the UK, focus on adherence to standards for children’s rights. The Minister may say that these rights will be protected, but where will be the statutory provision requiring respect for children’s rights in lawmaking? We should expect from Ministers a commitment to have due regard to the UN Convention on the Rights of the Child, and this should be incorporated in law.
The Children’s Rights Alliance makes a powerful argument for retaining the Charter of Fundamental Rights, due to be removed in Clause 5 of the Bill. Some charter rights—for example, those relating to children—have no equivalent protection in UK law. The noble Baroness, Lady Evans, referred to the charter in her opening speech this morning and pointed to the Government’s right-by-right analysis to justify their position. What she did not refer to was the Joint Committee on Human Rights’ scrutiny which, in six paragraphs, refers to uncertainty that is likely to undermine rights, including children’s rights under the UNCRC.
In short, laws to protect children and deliver transparent justice for families must be preserved. It concerns me that I see too little emphasis from the Government on that aspect of Brexit. I hope that legislation for children and families will feature in our future deliberations.
Lord Tugendhat (Con)
My Lords, I agree with those who say that this Bill is not about whether we should leave the EU or stay in it—it is about how to ensure against a legal void when we leave. On that basis, it is a Bill that must, of course, pass. The question is in what form it should leave this House and return to the Commons. As has been widely pointed out, it represents an unprecedented arrogation of power to the Executive. Our duty, therefore, is to do as much as we can to ensure that the arrangements in place will be those that ensure that the powers are exercised in a responsible and democratic fashion, in accordance with parliamentary sovereignty and the rights of the devolved Administrations. It will be for the House of Commons to take the final decisions, but we must do what we can to lay before it a Bill that meets those criteria.
This means that the Bill requires substantial revision. I hope very much that the Government will take into account the serious concerns raised by the Constitution Committee and others with parliamentary and constitutional experience. I was encouraged by what my noble friend the Leader of the House had to say on that subject. I hope very much that noble Lords on the other Front Bench will pay very serious attention to what is said and not resort to any accusations of sabotage or anything of that nature. For my part, I hope that I will in general support Ministers. However, I will feel able to do so only if I am convinced by the merits of the case they put forward and that they have taken into account the arguments others have made, even if they have not accepted them.
I hope that the Government will understand another concern that I have. Our debates take place against a background of not only negotiations in Brussels but a struggle between different factions in the Cabinet and within the Conservative Party. Indeed, it is very hard to know at times what official policy is, let alone in what direction it is heading. This uncertainty is bound to influence the way in which—I was going to say “one” but I should say “I”—I respond to ministerial arguments on the Bill and to the way in which Ministers deal with amendments that are put forward. That is true of not just those clauses and amendments relating to our domestic law; it is even more true of those relating to our future relationship with the European Union. On that question I would like to make two points in the limited time available.
First, we must aim to strike a balance between the least possible economic and trading disruption in the short term and scope for regulatory divergence in the long term. That sentence is easy to say but the objective is extremely difficult to reach. As time progresses, the EU will develop differently from how it would have done if we were still members. We need to ensure that while remaining closely aligned to it, we are able to adopt policies that reflect our own views and priorities.
My second point is directed at those to whom the role and scope of the European Court of Justice and European law has become neuralgic. I ask them to consider the extent to which the United States listing requirements and sanctions regulations impinge on the freedom of action and practices of British companies and citizens. We live in a world in which a middle-sized economic power is inevitably constrained by the extraterritorial reach of the larger powers. If we are to prosper and have a successful trading and commercial relationship with the rest of the world, we are going to have to accept that reality. We will certainly have to accept it in any deal we might do with the United States. We need to accept it in relation to the European Union and in due course we will find that we have to accept it in relation to China.
I end on a point which others have made: if we are to secure a good deal—or, indeed, any deal—in Brussels, the Cabinet must end its internecine warfare and Cabinet Ministers must curb their personal ambitions. They must rally behind the Prime Minister and get stuck into the job in hand.
Baroness Goudie (Lab)
My Lords, the Bill seeks to make provision in connection with the withdrawal from the EU of the three nations, England, Wales and Scotland, and part of the island of Ireland, if that can somehow be done without having a hard border across that island between the UK and the EU. The Bill is a stab in the dark. None of the terms of withdrawal is yet known. All we can sensibly do at this stage is to make provision for how decisions will be made and by whom, and when the terms are known their acceptability or otherwise must be judged. Will it be by Ministers, without accountability? Will it be by Parliament, by way of a No. 2 Bill? Will it be by a referendum? Or will it be some combination of the foregoing?
The fact is that the whole Brexit process is a mess. It needs straightening out. There is no case for a second referendum, if by that is meant a return to the referendum we have already had. There is every case, if one is ever going to have referendums at all, for another referendum, at the appropriate time, in the circumstances then prevailing, on an altogether different question: namely, what to do once the terms are known. The past referendum is spent. Voters have died, and others have come of age.
There were four options the day after the previous referendum. The Government adopted none of them. Total confusion reigned, it has reigned since and it reigns today. One option was to accept that it was not a binding referendum, that between the constituent parts of the UK the result was a tie, that overall the result was close, and that Parliament should decide, doing no less and no more than taking due account of the referendum outcome.
The second option was to interpret the outcome of the referendum and the closeness of the result as meaning not, at one end of the spectrum, remain, nor, at the other end of the spectrum, a hard Brexit, but down the middle a soft Brexit, behind which there might develop some degree of accommodation, rather than heightening the polarisation. But neither the referendum itself nor the Government’s reaction to it provided any clarity as to what Brexit was supposed to mean.
Thirdly, Brexit could have meant Brexit. That, presumably, is what Brexiteers thought that they were voting for. However, they have been betrayed ever since the morning after the referendum. By “Brexit” they no doubt meant taking back control, informing the EU, as of then, that we were out of the EU. Of course, there would be matters, financial and otherwise, to be sorted out after departure, but there would be no delay at all in departure itself and taking back so-called control forthwith.
The fourth option was a watered-down version of the third. On the day after the referendum, or, if you prefer, the following Monday, two years’ notice of withdrawal would be given. However, even that was not done. First one Prime Minister, then another, dithered, and then there was talk about whether even two years from a delayed starting point would produce finality.
So confusion piled upon confusion from the word go, and it continues. The Government cannot be entrusted with the process either of determining whether Brexit should go ahead on the final terms or, if it is ultimately to be implemented in one way or another, of how that is to be done. There must be democratic accountability, above all at the crucial stage yet to come. The present Bill is only half a Bill. It professes to repeal the 1972 Act but seeks to do so before knowing more than half the picture.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, as has been said, this is an extremely complex and legalistic Bill. While I may be able to cope with the complex, the legal ramifications are beyond me and are much better left to those who have had the necessary training and experience. Nevertheless, the Bill and all that it stands for will have huge implications for people in what was the United Kingdom. Many are extremely frustrated at how long it is taking to extricate the country from what they see as the “clutches of Europe”. Others are extremely apprehensive about what their future will be in a stand-alone island.
Today’s debate is important, as it sets the tone for the debate to take place during Committee and Report, when those here today will drill down into the detail. The Bill seeks, as the Leader of the House so eloquently set out, to ensure that our laws under the EU are transposed into UK law at the point in March 2019 when the country no longer has EU membership; it seeks, that is, to align UK law with that which pertains before March 2019. There is a great deal of disquiet about exactly what this will mean and how it will affect businesses in the agri-food sector.
Agriculture in 2015, was 1.4% of the GVA in England, 2.7% in the south-west and Scotland, and 4.8% in Wales. But—and it is a big but—it represented 70% of the land use across the UK. Food growth feeds into food production. Food supply is one of the 13 critical national infrastructure sectors. In 2015, the food chain relied on imports of £40.3 billion, of which £28.4 billion came from the EU. In terms of food manufacture, 25% of employees were born outside the UK.
The current subsectors of land use are: agritech, which is very important for new and innovative ways of both growing and harvesting crops; plant breeding, another area where investment brings huge returns; and forestry. According to the 2014 VAT statistics—goodness know why there are not more up-to-date statistics—there are 3,685 forestry businesses, 555 sawmills, 130 wood-based panel businesses and 230 pulp and paper businesses. Of the private owners, 90% have holdings of less than 10 hectares. This equates to 30% of privately owned forests. Yesterday’s debate on the 25-year environment plan showed that forests are essential to the quality of the air we breathe. We must preserve these businesses after the exit from the EU.
Post Brexit, what will happen to the National Office of Animal Health—aptly named NOAH? Veterinary medicines are essential. As with food production and safety, the UK needs access to developments in animal welfare and medical advances in order to ensure healthy crops and livestock. Currently, EU rules protect livestock from foot and mouth, blue tongue, avian flu and the Asian longhorn beetle. These diseases have a damaging and long-lasting effect on farmers. EU rules ensure there is immediate cessation of trade from infected areas, and swift resumption once appropriate controls are in place. Farmers and growers will wish to have the security of such controls post Brexit.
Although agriculture is vital, many will point out that food manufacturing, wholesaling, retailing and non-residential catering produce 10 times the GVA. However, without a sustainable, vibrant agricultural base, will food manufacturers increasingly have to import from all over the world? Our fishermen currently land cod in UK ports, where it is sent to China for filleting; China then sends it back to the UK for breading. What total nonsense is this? No doubt it is then served up in the restaurants in and around the House.
We live on an island with brilliant coastlines and countryside. Ireland has a similarly vibrant fishing industry which needs protecting. As we all know, fish are not respecters of borders—how can they be? I look forward to both the agriculture and the fisheries bills coming forward later this year. In the meantime, I have flagged up my concerns about how this Bill will align our laws in reality and how important it is to amend it to make it fit for purpose.
Lord Bilimoria (CB)
My Lords, Professor Sir David Eastwood, the vice-chancellor of the University of Birmingham, where I am proud to be chancellor, wrote an article yesterday, entitled “Trump and Brexit have triggered two deep constitutional crises”. “Two years ago”, he says,
“a Trump presidency and a vote for Brexit were considered all but unthinkable. Now, two of the world’s oldest democracies are struggling to live with them, and their struggles are even more profound than they seem”.
He goes on to say that basically, since the Reformation, Parliament has always been sovereign and until the Brexit vote the broad parameters of the constitution, according to Walter Bagehot in the 1860s, have prevailed. When we have had referenda in the past, on the whole they have reflected the will of Parliament. However, David Cameron decided on this referendum and, for the first time, we had a Prime Minister and a country in turmoil, with Parliament—the vast majority of MPs and Members of this place—wanting to remain before the referendum and then a narrow result. Now, politics is on hold until Brexit is determined. Both parties are beholden to their more extreme wings, according to Professor David Eastwood, and the machinery of government is overheating and struggling to shape the Brexit deal.
Is this going to continue? The Government have put down the red lines of leaving the single market and the customs union. The EU has made the situation very clear. Yesterday, it said, “If you want a transition period, you can have it but you have to adhere to the free movement of people, you have to keep paying money in, and you have to keep having EU regulations and EU law”. So what deal will the Government be able to negotiate on that basis? Today, BuzzFeed News is reporting on the leaked government analysis of Brexit that says that Britain will be worse off in every scenario. That analysis looked at three scenarios: deal, no deal and a soft Brexit. In each case, Britain will be far worse off in every area. It says that the biggest negative is the UK’s decision to leave both the customs union and the single market.
We have had 3 million people from the European Union working here. In phase 1 of the negotiations it was said that they would be protected, but what about the future? They make up less than 5% of this country’s population. They are not a burden on this country. Without them, we would have an acute labour shortage, so we should be grateful to them.
I openly admit that I am a Eurosceptic in many ways. I dislike the European Parliament, I do not know who my MEPs are—I do not think that many of your Lordships do—and there is no accountability or responsibility. I think that the euro was a huge mistake—thank God we did not join it. I made a mistake with Schengen: I thought that we should have been a member, but now thankfully, from a security point of view, we are not. So we will never have a “United States of Europe”.
I have never been one for further European integration. We signed out of that. The EU is nowhere near perfect. It has huge faults but, looking at it on the whole, on balance we have done well out of it. We have had the highest cumulative GDP growth rate of any nation, including Germany—62%—since being a member of the EU. However, the sad thing is that even the OBR in the Budget has just said that, looking ahead, we will have a growth rate of less than 2% a year for five years—the lowest ever level.
We are the highest recipient of inward investment in Europe but, now, the Government and the Brexiteers are talking about going global. What is this “going global” nonsense? Fifty per cent of our trade is with the European Union. Another 20% on top of that is through the free trade agreements we have through the European Union, including, now, with Japan. That leaves 30%. As a businessman, am I going to give up 70% for 30%—and a 30% that I may never get? India and the Commonwealth account for less than 10% of our trade. Canada has a free trade deal with the EU but the EU accounts for only 10% of Canada’s trade. Its biggest trading partner is the United States—next door to it. India has nine free trade deals with countries around the world but not one is a western country. And what about the £8 billion that we have paid into the EU? I would pay that for the peace that we have had over the last few decades, including through NATO. As for sovereignty and taking back control, what a lot of nonsense. The laws that affect us in our day-to-day life are not the 20,000 regulations that the noble Lord, Lord Pearson, spoke about but the ones that we make here in this House every day.
I turn to this European Union (Withdrawal) Bill—or great repeal Bill, or whatever it is called. In the debate that we had last week on devolution, I challenged the Minister to explain how we are going to deal with the Northern Ireland situation. He did not have an answer. Phase 1 has just kicked the can down the road. Scotland will say, “We want to be treated on the same terms”. Can the Minister tell me how we are going to deal with Clause 11, to which the noble and learned Lord, Lord Hope, referred?
By the way, at the time of the referendum UKIP got 12.5% of the vote. Today, the figure is 1.8%, and let us not talk about its leader. What really upsets me is that Brexit has damaged our standing in the world and I see this all the time. I was with the Prime Minister of India earlier this month and I have seen India’s reaction to Brexit. We were flying before the referendum; now, look at Davos, where we were overshadowed by Macron and Trump. The whole world, except for Trump, thinks that we should remain in the EU.
In conclusion, virtually every speech today has made references to “when we leave the European Union” and “after Brexit”. Steve Jobs founded the most successful company the world has ever known—Apple. He said that changing your mind is a sign of intelligence. Keynes said:
“When the facts change, I change my mind. What do you do, sir?”
Even David Davis said:
“If a democracy cannot change its mind, it ceases to be a democracy”.
We have Juncker and Barnier—everyone—saying, “Stay on. We would welcome you staying on”. Even Farage has now spoken about a second referendum. Boris Johnson has said that there is now a danger that Brexit will not take place.
My message is this: we have to go through the motions of this Bill. We have to go through whatever we have to go through, but in a normal democracy you get a chance every five years to change your mind. We are not getting that chance, and in the two years that have already passed since the referendum was called, a lot has changed. We face many challenges: the NHS, our security, our police forces, our Armed Forces, our Army, which would not fill Wembley Stadium, our Navy and our entrepreneurship—fewer companies started last year than the year before. That is what we have to deal with, not this wretched referendum. We need to give the British people the chance to have their say, with all the facts—we can call it a second referendum; we can call it referendum part two—and Parliament must have the final say before any deal is passed on to the European Union. Will the Minister confirm that Parliament will have the final say?
Finally, at the Harvard Business School— of which I am proud to be an alumnus—I talked to Dr Deepak Malhotra, a world expert in negotiations. He has written an excellent paper on Brexit. He told me to read a book about the build-up of the First World War. He said, “Reading that book is like watching a train crash in slow motion. Karan, that is what Brexit is: a train crash in slow motion”. It is not too late to stop that train crash.
Viscount Ridley (Con)
My Lords, this is not the Bill that enables us to leave the European Union. It is the Bill that makes sure the law works when we do. Britain voted decisively in 2016 to leave the EU. Both Houses of Parliament then voted to leave the EU. Both main parties stood in the general election on a manifesto of leaving the EU, while the Liberal Democrats and Scottish nationalists, who stood on the opposite promise, lost votes and seats.
Now, the elected House of Commons has sent us this Bill almost unamended. That does not mean we cannot scrutinise and amend it, but it does mean that trying to wreck it, under the pretence of amending it, is not acceptable. If, in this gilded, crimson echo chamber of remain, this neo-Jacobite hold-out for the euro-king across the water, we indulge in wrecking this Bill, we will not stop Brexit—but we might hurt Britain. The public reaction would rightly be severe. In the part of the world I come from, in Ashington, Blyth and Cramlington, they will say—I paraphrase—“How dare that unelected panoply of panjandrums and pampered popinjays think they know better?”.
I look around this Chamber and, among those with genuine concerns about the Bill—many of whom will have listened attentively to my noble friend the Leader and her careful concessions on the SLSC and affirmative procedure—I also see people pretending to worry about democracy while trying to undermine it and pretending to want the best for the country while talking down Britain. I see people who, unlike David Cameron, refuse to admit that,
“Brexit has turned out less badly than we first thought”.
That is a quote.
Viscount Ridley
That is what David Cameron said. Remember what the Treasury forecast said in the event of a leave vote. These were its exact words:
“A vote to leave would represent an immediate and profound shock to our economy. That shock would push our economy into a recession and lead to an increase in unemployment of around 500,000, GDP would be 3.6% smaller, average real wages would be lower, inflation higher, sterling weaker, house prices would be hit and public borrowing would rise compared with a vote to remain”.
That was not its worst-case scenario. Instead, we have falling unemployment, record employment, strong consumer confidence, robust GDP growth, higher real wages, modest inflation, stable house prices, booming inward investment, thriving tourism, a buoyant stock market and even sterling is back above $1.40—not far off its pre-referendum level, more’s the pity.
That is a clean sweep of failed predictions and the Treasury, in the leaked documents that we have seen today, has barely changed its models.
In August 2016, the Bank of England forecast that exports in 2017 would be down by 0.5%, despite the devaluation of sterling. In fact, they were up 8.3% year on year. Here are a few headlines from just this month alone:
“Exports put UK factories on their best run for 20 years”;
“Freight volumes through the Port of Dover have reached record levels for the fifth consecutive year”;
“UK tech sector enjoys record investment in 2017 despite Brexit”;
“UK services grow faster than forecast despite growing Brexit concern”;
“British universities boast record number of international student admissions”;
and, for the first time ever, the UK has topped the Forbes annual survey of the best countries for business.
To those who say things could have been even better, I reply that I am amazed we have not slowed more. Despite a dire dirge of doom from the diehards that people should put their heads between their legs and kiss their fundaments goodbye, British consumers and producers just keep rolling along. Good for them. The noble Lord, Lord O’Neill, made the sensible point that Brexit is probably not the most important thing happening. “If that’s the worst that Brexit will deliver”, he said, “I wouldn’t worry about it”.
Talk to businessmen and they are more concerned about the fourth industrial revolution, and the opportunities and threats that it brings—artificial intelligence, data processing and gene editing. I have just come from the inaugural meeting of the APPG on Blockchain. We face a thrilling century in a vibrant world. We can face it from behind the protectionist tariff walls and harmonised regulatory veils of the EU—where sluggish legislation is shaped by £1.5 billion of crony capitalist lobbying a year—or we can face it openly, adopting global standards and taking decisions that favour innovation rather than retard it. That does not mean deregulation; it means better regulation. To get there, we need as a simple exercise of democratic action, to pass this Bill, which neither gold-plates nor waters down anything.
To those noble Lords who say that the Government will get too much executive power here or there in the undergrowth of the Bill: I will listen to their arguments. I have some sympathy with them, though I wonder why they often expressed so little concern at the way EU laws were imposed on us in the biggest Henry VIII power grab of all. However, I urge them to listen to what the Government are saying in concession to these points. Some of the accusations of incoherence from this side of the House do, I admit, have force. But it is a bit rich to be lectured on incoherence by the Labour Party.
Lord Foulkes of Cumnock (Lab)
My Lords, I am really glad that I did not have to follow the rousing and excellent speech by the noble Lord, Lord Bilimoria. It would not have been easy. Instead, I have the pleasure of responding to the alliterative rabble-rousing rant of the noble Viscount, Lord Ridley. I must remind him that we are still in the European Union, so all that he started by saying is entirely irrelevant. He and a number of Members, including the noble Lord, Lord Tugendhat, said that the Bill is nothing to do with whether or not we leave. With respect to them, the Bill assumes that we are leaving, so it is relevant. I make no apology for restating what I have said before. I do not accept that in a parliamentary democracy an advisory referendum is binding on Parliament and the Government—or, as the Prime Minister said, an instruction to Government. I thought I was in a minority of one in that view until I heard the magnificent speech of the noble Lord, Lord Higgins. It was terrific, so now there are two of us. There may be more. Any advance on two? Three, four—we are doing well. The numbers are growing.
Those who will be most affected by our exit did not have a vote. The 16 and 17 year-olds, who had a vote in the Scottish referendum, were not allowed a vote in the EU referendum. They would be able to vote now: they are 18. European Union citizens were not allowed to vote yet they pay their taxes and have been for years. What happened to no taxation without representation? They should have had a vote but did not in that flawed referendum that is supposed to be binding on us.
Before I continue on that theme, I want to say a word about Clause 11. I agree with all my Scottish colleagues, from different parties and none, about the need to deal with the concerns of the devolved Administrations in Clause 11. Along with the noble Lord, Lord Wigley, I shall table an amendment that will ensure the approval of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly by a Motion of legislative consent. It will make it mandatory that this cannot go through until these devolved Parliaments agree.
Returning to the theme, it has been 19 months since the referendum and what has happened? Almost nothing. There have been almost no agreements. How long do we have left? The clock is ticking very fast. There are only 13 months left. We have had confusion, uncertainty and concern. Not just Gibraltar, but other overseas territories have been in touch with me about their concerns. Northern Ireland has this astonishing situation whereby the Democratic Unionists may agree something that could end with a united Ireland, if things go wrong with this whole operation. We have had concern expressed by the arts sector, the media, universities and the City of London. Nurses and doctors have been leaving. A leaked document from the Department for Exiting the European Union says that growth will be 5% lower if we leave—not when we leave—unless we have a bespoke deal. What is a bespoke deal? I do not trust Dr Liam Fox to get us anything as wonderful as a bespoke deal.
As we saw again today, Brexit is dominating our discussions and our Oral Questions. It is dominating what the Government are doing. Justice, the health service and education are not getting the consideration that they deserve. How do we extricate ourselves from a looming disaster, this cliff edge? Last night, I went to the Speaker’s Lecture and heard Kenneth Clarke once again give a brilliant demolition of Brexit, but sadly he stopped short of wanting to scupper it, which was very disappointing. Too many remainers are throwing in the towel. All the people who really understand it say the rush towards Brexit will be disastrous, yet some of them are still rushing towards it. It makes lemmings look cautious by comparison.
There is a mechanism by which we could save ourselves. I believe in parliamentary democracy, and Parliament could do it in that meaningful vote. If it is argued—it is an argument—that we have had one referendum and it can be overruled only by another referendum, I would go along with that. It would not be a second referendum, incidentally; it would be a third. We had one in 1975, with a two-thirds majority in favour of staying in the European Union. I say to the noble Viscount, Lord Ridley: that was a huge majority, not what we had in the last referendum. This would be the first referendum where we knew exactly what was involved and when we could decide on either the deal that the Government agree—if they manage to get one—or the status quo. That status quo would be continued membership of the European Union. There is a real choice and we would understand it. We should not be leaving Europe; we could, and should, be leading in Europe.
Lord Kilclooney (CB)
My Lords, way back in the middle of the last century, I was an active member of the European Youth Campaign. In 1975, I campaigned to keep the United Kingdom in the European Economic Community. I was a Member of the European Parliament for 10 years and, for a considerable number of years following that, was in the Parliamentary Assembly of the Council of Europe in Strasbourg. I was a member of the Christian Democrats, the PPE, in the Strasbourg assembly. I have visited every nation in Europe, including the Vatican. I feel European and British. But the longer I was in Strasbourg, the more I realised that the European Union was becoming a politically integrated union and not the European Economic Community that I had supported. I therefore, after much soul-searching, voted for Brexit.
The legislation is most complicated and gives the Lords the opportunity to present itself to the United Kingdom at its best. Alas, it gives those who wish to abolish the Lords a great opportunity to present the Lords at its worst. I am impressed by the maturity of approach by her Majesty’s Official Opposition.
Brexit has many challenges for those of us who live in the island of Ireland—both those in the United Kingdom and those in the Republic of Ireland. For the Republic, it will probably mean a reduction in agricultural exports to Great Britain, increased payments to the European Union budget and reduced CAP funding for its farmers. In Northern Ireland, we take no pleasure in economic problems in the south, because they would impact on us as well, and we hope that these problems can be overcome.
In Northern Ireland, it is correct that a majority voted against Brexit. It was not only Sinn Fein and the SDLP who voted in that way; the Ulster Unionist Party also campaigned to remain within the European Union. The latter has now decided to accept the referendum result and so it can now be reasonably assumed that it is a minority in Northern Ireland that still wishes to remain within the European Union.
Lord Kilclooney
Yes, that is the correct position.
In trade and business, the vast majority from Northern Ireland goes to Great Britain and only a minority across the border to the Republic, so the suggestion of a new border running down the Irish Sea would be disastrous both for Northern Ireland business and for employment. I note that this proposal has now been abandoned.
In Northern Ireland, I live near the United Kingdom border with the Republic. We welcome the objective of a soft border. We are assured that already Belfast, Dublin, London and Brussels are agreed that the common travel area will continue. Let us hear no more scaremongering, please, about passports at the border. Likewise, we are pleased that the United Kingdom will have no structural posts at the border and would like 80% of trade by small and medium-sized hauliers to be customs free.
Of course, there needs to be a similar response to this on the other side of the border. Dublin, now controlled by Brussels, has still not made known to us its ideas on trade across the border. In fairness, there is still a lack of clarity by the European Union and the United Kingdom. Yes, we welcome the agreement on a common travel area, a soft border and full support for the Belfast agreement, of which I was one of the negotiators, but what does the statement made pre-Christmas mean? It promised,
“full alignment with those rules of the Internal Market and the Customs Union which … support North-South cooperation”.
It seems to me a meaningless fudge at the present.
Clause 11 refers to our devolved institutions in the United Kingdom. Those of us from Northern Ireland will consider this closely, as we have experienced the advantages of devolution since 1921.
Northern Ireland has just experienced a record number of tourists last year, and today our unemployment level is not only smaller than that in the European Union or the Republic of Ireland but even less than that in Great Britain. I never thought I would see that day.
In particular, as farm structure and size of farms are different from those in England, we will want to ensure that after Brexit agricultural policy will be a devolved responsibility at Stormont. What will be the future of the European Union’s prestigious geographical indicators, such as Parma ham and cheddar cheese? We have an interest in this because we have two in Northern Ireland—Lough Neagh eels and Armagh Bramley apples. After Brexit, will the European Union maintain them, or will the United Kingdom take over authority for these designations?
Finally, there is not only the Irish border but the border between Gibraltar and Spain. In Northern Ireland, we have a special interest in Gibraltar, as many people were evacuated from there to Northern Ireland or born in Northern Ireland during the Second World War. I trust that the interests of Gibraltar will be upheld and that the European Union will not give Spain a veto over any final EU-UK agreement that would wreck the agreement.
Lord Balfe (Con)
My Lords, I begin by drawing attention to my entries in the register as the serving chairman of the European Parliament pension fund and vice-president of its former members association, both of them 28-country organisations. I am not a UK president of something but a European one, and that probably gives noble Lords some idea of where I am coming from on this.
I have been involved in international affairs all my working life, from the age of 16, when I began as a junior official in the Crown Agents at 4 Millbank, opposite this House. Indeed, my first visit to the House of Lords—to sit up there—was when I was an official in that department. Whether it did any good or not I will leave to noble Lords to judge.
I regard this as the greatest single failure of my political life. I firmly believe not just in the European Union but in the wider concept of multilateralism: the idea that we need to do things together, whether through the UN, the Council of Europe, the European Court of Human Rights, the UN agencies or the European Community. I am a firm believer in that idea, and all the evidence, from a lifetime in international affairs, leads me clearly to the point that we work better when we work together. We may not get everything, but we certainly work better.
This is a withdrawal Bill. I know of no club, anywhere, where you get better terms from being outside it than from being in it. That is why they set up the club: to give members benefits. We, outside the European Union, can talk about what sort of result we want, but the fact is that we cannot get as good a result. I have returned this afternoon from talking to a delegation to Parliament from Norway, and I put that specific question to them. They told me, “Yes, we’re outside the main decision-making structure. When we want to influence something, we have to go to another country and convince them to raise our case alongside theirs”. Indeed, when I was in the justice ministry in Oslo not that long ago, someone said that the most important desk in that ministry was the one with the direct telephone line to Stockholm. However we delude ourselves, the fact is that whatever deal we get, it will not be as good as if we were inside.
I am particularly concerned at the impact that withdrawal may—I say may—have on organised labour. As some noble Lords know, I have a long connection with the trade union movement, and I have noted that the Government have given a good number of assurances. I will, however, be carefully reading three excellent briefings I have had: one from Greener UK, one from Liberty, one from Amnesty, and of course one from the TUC. We will be watching very closely and seeking agreement and undertakings from the Government that the safeguards won from Brussels will not be threatened. We need to protect existing rights, for instance to equal pay, and to transpose Article 157 of the treaty of the European Union—and its judgments—into the situation that we have after we leave the European Union. We also need to safeguard all the other labour advances that have been won.
We need to make sure that we do not, as Philip Hammond indicated we might, start competing by reducing workers’ rights. In an interview in the German newspaper Welt am Sonntag, “World on Sunday”, a year ago, he stated quite clearly that,
“we could be forced to change our economic model and we will have to change our model to regain competitiveness. And you can be sure we will do whatever we have to do”.
We will be watching Philip Hammond carefully. We will obviously not be the only people watching him, as he has a whole raft of people watching his every move—he probably has a spy cam in his bathroom. But we will watch carefully to see that things are protected.
Finally, Clauses 7, 8 and 9 give Ministers powers that seem worryingly wide. I hope that the Opposition will join us in opposing them, but to my own side I say: “Would you be happy for Mr Jeremy Corbyn and Mr John McDonnell to have these powers in their hands, to change legislation in ministries without reference to the democratic structure? That is what these clauses do”. I was always brought up to believe that you should look at the worst-case scenario, and believe that the person whom you really do not want driving the train is in the driver’s seat. So I challenge my Front Bench: how many powers are you willing to give our dear friend Jeremy?
Baroness Liddell of Coatdyke (Lab)
My Lords, I will not answer that question.
It was very obvious when the Bill was passing through the other House that it was not fit for purpose. That has been dramatically emphasised with the report from the Constitution Committee, ably introduced this morning by my noble friend Lady Taylor of Bolton, and it is the job of this House to take a badly drafted Bill and try to make it into something adequate for the purpose. Yet we are doing it with what is probably the most historic and significant Bill that any of us have ever dealt with.
I suppose it is inevitable that when a Government put a party before country, their life will get very complicated. Prime Minister Cameron did that when he called the referendum; he was putting a tactical issue within the Conservative Party to the nation and assuming it would get us out of a hole. It did not, and we find ourselves now in a very difficult position. The noble and learned Lord, Lord Hope of Craighead, said in a forensically argued speech that the Bill, in the way that it was written, was “naive and … damaging”. I agree. The noble Lord, Lord Newby, cited “arrogance and incompetence”. There is a pattern emerging here. Almost everything that the Government have touched in relation to Brexit and the detail of Brexit has come catastrophically unstuck.
Parliament fought for, and was granted, access to the sectoral analyses that the Government had denied they had. Like many noble Lords, I spent an afternoon going through those sectoral analyses. It left me with a distinct feeling that we, as parliamentarians, were being taken for fools. They were shallow, unilluminating and frequently ill-thought out. They looked for all the world like a diversionary tactic. I have spent a better afternoon in bed with the flu watching replays of “Babe” and “Babe: Pig in the City”. It was a complete and utter waste of time. But should I have been surprised, when the Government have evaded every opportunity to be open and frank about the choices the country faces?
The noble Lord, Lord Higgins, put it succinctly in a powerful speech this morning by saying that under the guise of not hampering the direction of negotiations, the Government refuse to reveal anything. But by their bashfulness, they reveal what many of us have suspected all along: that they do not know the direction of travel or the destination. That is a very dangerous situation to be in.
The noble Lord, Lord Tugendhat, talked about financial services. We were promised an analysis in financial services. This is critical. There are a million jobs in financial services and we cannot get from anybody an indication of how the regulatory framework and the legal framework are going to work. This is not about the fat cats of the City; it is about the people who live in the next street to me and work in Glasgow, and others who work in Edinburgh, Leeds and Bristol. We need to make that information available to business; not to do so is unacceptable and extremely risky.
We hear a lot about free trade agreements and how they will sort out our difficulties with financial services. Free trade agreements deal with goods. Services are not traditionally covered in free trade agreements. On a couple of occasions they were tried and knocked back. It is not going to be easy to get an FTA relating to financial services, and everybody is pretending that it is not going to matter. Meantime, we have the Prudential Regulation Authority saying to all the big institutions, “You have to have your worst-case scenario ready”, and most of them know that it has to be ready by the end of the first quarter, at the end of March.
The noble Lord, Lord Hill, put it well when he said that there was a need for speed, honesty and certainty. That is true right across the board. I say in relation to Ireland that we have not got the speed, the honesty and the certainty about the nature of borders. Where I come from in the west of Scotland, the history of Ireland was regularly played out until a few years ago, when the Good Friday agreement resolved an awful lot of the issues. We have already talked about Gibraltar and the other territories, but it is critical in relation to the devolution settlement that we stop mucking about on this. Noble Lords have spoken with much greater authority than I ever could—despite having been, at one stage, Secretary of State for Scotland—about the detail of the devolution settlement, which could lead us to a constitutional impasse of quite significant proportions. Quite frankly—let us talk base politics—this is a gift to the separatists, and the longer we muck about on this the greater the gift is.
We are in a ludicrous situation where a Prime Minister cannot even make a speech that sets out the direction of travel. The noble Lord, Lord Dobbs, in a very witty speech, talked about how we need to behave ourselves or we will start losing powers here—actually, some of us would say, “Bring it on. We think this place needs to be reformed”. I say to noble Lords in every part of this House: we are one of the most expert Chambers in the world, so let us use that expertise, for the good of our country, to try to make some sense out of this badly flawed piece of legislation. Frankly, if we cannot do that, we always have my noble friend Lord Adonis’s alternative.
Lord Teverson (LD)
My Lords, it is a great pleasure to follow an excellent speech by the noble Baroness, Lady Liddell, but it is not a pleasure for me to be speaking in this debate about withdrawal from the European Union. That we are having it is even less of a pleasure for my daughters, who are in their 20s.
The noble Viscount, Lord Ridley, mentioned a lot of economic indicators. Some are true, but a whole host of others are not anything as good as that. The Government’s forecast for the future of the economy has not been good, as we have seen in yesterday’s report. But that is nothing compared to the hit that we have taken to our international stature and how we have been seen abroad diplomatically through how we have handled these negotiations. I weep at how we have portrayed ourselves to the international community in terms of this nation’s ability. This nation should not just be leading Europe, as the noble Lord, Lord Foulkes, said, but be standing proud in the United Nations—as one of the five permanent members of the Security Council—and in all the other bodies that we are still in. We have devalued ourselves. That is not good when we start to enter international negotiations on trade.
One of the best pieces of advice I have heard recently was, “Never tell a computer that you’re in a hurry”. Many noble Lords know why. That is nothing in comparison with when you are in trade negotiations. We are facing some of the most hard-nosed and experienced people there are, and the fact that we are in a hurry, desperate and concerned to get a deal quickly will mean that we seriously erode our negotiating ability. That sincerely worries me.
The Bill deals with bringing the acquis on to the British statute book. One of the areas that is missing in the acquis is economic and social cohesion. It is in Article 174 of the Treaty on the Functioning of the European Union, and states that one of the missions of the European Union is to reduce disparities between regions within the EU. When I was a Member of the European Parliament, I was proud of ensuring, through facts and rational argument, that my part of the world—Cornwall—received some of the highest levels of European intervention. That has enabled, among other things, Cornwall to have a highly successful university campus that has done the economy a great deal of good, yet I do not see that aspiration moving across. One of the great things about European economic and social cohesion policy is that it is based on facts, evidence and rules. As we move forward with a different regional policy in the UK and in England in particular, my fear is that we will move back to the old ways—so political influence, lobbying and the other areas of pork-barrel politics will mean that the right decisions about regional aid will not be made and the disparities within England and the United Kingdom will not be met fully by the future regime. I want those values, that guidance and that evidence-based method of deciding where regional aid goes brought on to the UK statute book through the Bill.
I am also concerned about the environmental side. Yesterday, we debated the 25-year environmental plan. I was delighted that it states that the “polluter pays” principle is important. I congratulate the Government on including that in the plan, but let us bring the precautionary principle into the Bill. The fantastic 1987 Brundtland report Our Common Future started to change the way we looked at sustainable development globally, and it was reinforced at the Rio conference in 1991. This principle is in European statute, and it is important for our environment that we transfer it. I hope the Government will bring forward suitable arrangements on animal sentience within this Bill, not in a following agriculture Bill.
Finally, the noble Lord, Lord Krebs, mentioned the report of the energy sub-committee of the European Union Committee that I chair. Every bit of evidence that we had from the sector said that we should remain, if possible, in the internal energy market. That will be very difficult if we are not inside the single market, but it is something that we need to find a way to do, otherwise our energy prices, energy trading and energy security will not be where they need to be. Euratom—an organisation we did not even need to withdraw from—was not on the referendum question paper, and there we need to be very clear that we have continuity between our current membership, through transition to our future relationship, otherwise our whole nuclear programme will be threatened.
Coming back to our international reputation, I was asked by someone on the other side of the argument why everybody always seems to accept what Mr Barnier says and not what the Government say when we are in negotiations. I believe we have had an abysmal record on negotiations, as I have said to the House before, because everything that Mr Barnier says seems to come true, while everything that the Government say disappears in smoke. That is, once again, damaging to our international reputation. I hope through this Bill, somehow, we can start to mend that.
Lord Wilson of Dinton (CB)
My Lords, I am very pleased to follow the noble Lord, Lord Teverson, particularly on the question of trade negotiations. In the mid-1960s I was a very junior member of the team that negotiated the Kennedy round. I learned some lessons about trade negotiations then, one of which was that they do not bring out the nice side of other people: they bring out hard-headed self-interest and require grind, and the last thing you should ever be is in a hurry. He is absolutely right.
It goes without saying that the House must allow the Bill to pass. It would be unthinkable to try to wreck it or block it: it would do damage and the country could not afford the chaos that would follow if the Bill were in some way to not reach the statute book. That is not worth spending time on. But the Bill does need to be improved, which is where this House is absolutely in its element. This is a great opportunity for the country that we must use. We must protect and promote the sovereignty of Parliament. It is amazingly ironic that a strategy which claims to be motivated by the wish to restore sovereignty to Parliament appears to be trying to do it by bypassing that sovereignty. We cannot live with that.
If I may indulge one prejudice, it is that I hate the word “appropriate”. When I was in government, if I saw any draft in any official document which had “appropriate” in it, I would reach for my red pen. In my experience, it is either an indication of sloppy thinking by someone who has not thought out what they mean, or it is devious—and neither is right. “Appropriate” is inappropriate for this Bill, and I shall lend whatever weight I have to supporting anyone who comes up with better phrasing. That should be one of our agreed objectives.
I would like to ensure that the Bill protects the human rights of people who live in this country and am baffled by the exclusion of the EU Charter of Fundamental Rights. That needs careful examination. But we must, above all, protect the unity of the United Kingdom. I am alarmed by the position we are in on Northern Ireland and the risks that we are running. The use of slippery language, however clever—and “alignment” is, in a kind of awful way, clever—could lead to terrible consequences and slip over into things which no one ever intended.
Clearly, we have a big task and there is more one could say, but we need to ensure that the task of implementing the Bill is manageable and something that the Civil Service can do. I am constantly impressed by the scale of the challenge which the Civil Service faces now—the biggest challenge of any generation since the Second World War.
The right reverend Prelate the Bishop of Leeds used a lovely phrase, “corruption of public discourse”, which he deplored. That phrase should linger in the air, because it is what we are experiencing at the moment. I put in a plea that the Civil Service should not become subject to the corruption of public discourse. There appears in the press to be a tendency for Ministers, ex-Ministers and MPs to blame or play politics with the head of service and people who work for him. I have great admiration for Sir Jeremy Heywood and the people who serve the Government with him. I have absolutely no doubt that they are putting their very best people and efforts into serving the Government to the extent that they possibly can, and I deplore anyone who imputes lower motives to them.
If a Minister starts blaming his civil servants, I always sense that they are shifting the blame because they sense the failure of their own policies. They should say to themselves, “The fault, dear Brutus, lies not in our stars”—or in our civil servants—“but in ourselves”. The trouble is that the people who argued for Brexit knew what they wanted to get away from but are not agreed about where they want to go to. That means that we are still in the most divisive phase.
Our membership of Europe has always been divisive. It was divisive in the 1960s, and it has been divisive in the Conservative Party and the Labour Party. There is nothing new about that. But at the moment Brexit is making it a bitter division. If Brexit were to have a successful outcome, it would need by now to have generated a growing swell of support—a sense that, even if you did not like it, something was going to happen. That is not what we feel at all at the moment.
I am not starry-eyed about the EU—I think it has weaknesses and flaws—but I would favour continued membership because I believe that giving up our membership will leave us economically poorer and politically weaker. We should play our part from the inside and not pull out. But we are where we are. We have a flawed Bill and a flawed strategy, we have to try to limit the damage and I intend to lend my vote to that wherever I can.
I have one final point. The eyes of history are on us: they are on everyone involved in Brexit. History will be written by the young, not by our generation. It will be written by the young, and the young are in large part passionate in their wish to remain members of Europe. I think history will be very harsh on people who argue for Brexit and make a mess of it.
Baroness Eaton (Con)
My Lords, I declare my interest as a vice-president and former chairman of the Local Government Association.
As did many Members of this House, I began my political career as a local councillor. I have seen first-hand how services can be improved by devolving powers over them to local areas rather than running them from Whitehall. Brexit should not simply mean a transfer of powers from Brussels to Westminster, Holyrood, Stormont and Cardiff. We have an opportunity to do things differently, and to do them better.
The White Paper on legislating for withdrawal from the EU stated that leaving the EU is an opportunity to ensure that,
“power sits closer to the people of the UK than ever before”.
To my mind, that means that we must devolve power to our communities. We also know that legislation concerning education, housing, social care and numerous other issues has been improved by the involvement of local government. Parliament benefits from the experience that many Members gain from serving in local government and working for the LGA and its members.
At present, local government has a formal advisory role in the EU law and policy-making process through its membership of the Committee of the Regions. The committee has made sure that the voice of local communities is listened to and informs law and policy- making. Just one example of its work is its successful campaign to block an attempt to set binding EU targets for the renovation of local authority properties. Despite MEPs supporting the Commission’s proposals, Ministers supported the committee’s view that the targets would set an intolerable £5 billion burden on local councils, and that a more general objective for each member state would better respect the principle of subsidiarity. In my eyes, this does not mean that the committee has been perfect; it certainly has not. We do not wish to leave one large bureaucracy and create another home-grown version. I am not recommending that we recreate the committee, and neither is the LGA. However, it is important that we ensure councils have a formal role, as new legislation that affects them is brought before Parliament.
I know that the LGA, together with the local government associations in Wales, Scotland and Northern Ireland, has been in discussion with the Government about how councils’ advisory role might be continued once we leave the EU. It is positive to read that the Government have already had constructive discussions with local government about how the consultative rights that councils have at European level, through the Committee of the Regions, might be replicated domestically, without recreating the committee.
I hope that these discussions will continue to make progress and the Minister will be able to update the House with a solution.
Baroness Symons of Vernham Dean (Lab)
My Lords, in opening the debate this morning, the noble Baroness the Leader of the House said that the Bill is not about our future relationship with the EU, but about process. As my noble friend Lord Foulkes said, the Bill paves the way to our leaving the EU while setting aside a series of treaties that this country, this Parliament and, in particular, this House, spent hours and hours debating in the 40 years of our membership. As other noble Lords have emphasised, the Bill also has real constitutional consequences for us here at home, and in this Parliament—notably regarding the powers of Ministers, but also regarding our relationship with the devolved Administrations.
My noble friend Lady Taylor of Bolton spoke of the disappointment of the Constitution Committee that the Government have totally failed to address the concerns published some time ago in her committee’s interim report. Its latest report, published only yesterday, reiterates the serious issues that the Bill still raises about Northern Ireland. The Good Friday agreement took years of patient negotiation, first by the Major Government and then by the Blair Government. This is now a matter of critical concern; the relationship between Northern Ireland, as part of a United Kingdom that has withdrawn from the EU, and a southern Ireland that remains as part of the EU, is a very important issue, as my noble friend Lord Hain and others have emphasised.
In answering the debate tomorrow, I hope that the Minister will respond to the Constitution Committee’s recommendation that, before the completion of the Bill’s passage through this House, the Government publish an assessment of the effect of the Bill, and of the UK’s withdrawal from the EU, on the Good Friday agreement. This is a specific recommendation from one of the most highly respected committees of this House, and it deserves an answer from the Minister.
As the right reverend Prelate the Bishop of Leeds said, in what I thought was a very powerful intervention, too much of the debate on our relationship with, and withdrawal from, the EU has descended to a level that undermines all intelligent democratic argument. This Bill does nothing to retrieve the balance necessary to inform decision-taking.
In June 2016, the British people voted—not overwhelmingly, as some have tried to imply, but certainly decisively—to leave the European Union. The Government accepted that decision, and so did Parliament. The decisions ahead now must lie with a Parliament that is well informed and has real powers and rights to advise and amend government policy, as my noble and learned friend Lord Falconer emphasised.
As the noble Lord, Lord Bilimoria, said in his tremendously spirited address, the essence of democracy is that people can change their minds when they have more information or real experience of how a Government are performing. We had an election in May 2015 and another one in June 2017, the second one called by a Prime Minister expressly and explicitly to strengthen her negotiating hand in Europe. The British people voted in such a way that her negotiating hand was not strengthened; it was badly damaged and weakened. So surely the British people may well need to be consulted again at the conclusion of the negotiations—consulted on whether the Government have delivered a satisfactory result in terms of our leaving the EU. This Bill may not be the right vehicle for legislating on that point but, as a democracy, when those negotiations are at an end, the British people should be consulted as to whether what they voted for is what this Government have been able to deliver.
Lord Luce (CB)
My contribution will focus solely on the position of Gibraltar in the context of the broader negotiations between the United Kingdom and the European Union. I declare an interest as a former Governor of Gibraltar and as chancellor of the new University of Gibraltar.
I appreciate that this Bill applies only in a limited way to Gibraltar, but there is a need to provide firm reassurances at every stage about its future. I am glad that the Leader of the Opposition and other noble Lords have referred to this issue. It is worth reminding the House that Gibraltarians voted in the referendum by a majority of 96% in favour of remaining in the European Union. It is not surprising, therefore, that they are concerned to protect the rights and benefits that they have acquired since joining the EU with the UK in 1973. The best way in which to reassure them is to provide legal guarantees in addition to ministerial statements. This is a matter that can be probed in Committee.
Gibraltarians have every reason to feel anxious about the future, because the new EU negotiating directive issued by the European Council reaffirms clause 24, which featured in earlier negotiating guidelines. This clause purports to give Spain a veto over the application to Gibraltar of any agreement concluded after the United Kingdom has left the European Union. I am glad to note that HMG do not accept the legal validity of this clause, but the fact that Spain has persuaded the European Council to incorporate this clause in the negotiating guidelines is most unhelpful. While clause 24 does not apply to this Bill, Spain is putting pressure on the EU for the clause to apply to the proposed transition period as well as any longer term arrangement between the United Kingdom and the EU. Neither is acceptable.
Therefore, we have a scenario where, in the worst case, Spain can seek to exclude Gibraltar from any broad agreement between the EU and the UK and insist on a separate agreement over Gibraltar. What we do not want is a situation whereby the British Government are faced at the end of the overall negotiations with a stark choice either to accept the general agreement with the EU and exclude Gibraltar or to postpone the general agreement until we and Spain can agree on Gibraltar’s future arrangements.
The Prime Minister of Spain, Mr Rajoy, said on 14 December 2017:
“Whatever future agreement between the EU and the UK, there has to be an agreement between Spain and the UK for that to apply to Gibraltar. We also asked that this applies to the transition period”.
Moreover, in the recent past, Gibraltar has had to face plenty of provocation from some Francoist elements in the Spanish Government both on the Gibraltar border and within the UK-Gibraltar waters. The treatment of Catalonia gives us no encouragement. The Spanish bullfighting culture still emerges from time to time.
We must bear it in mind, of course, that, before any final general agreement, there has to be unanimity among all 27 EU partners. Moreover, most of us will feel that it is very much in the interests of Spain and the UK that there should be a satisfactory resolution. Good relations between us are important, and, in any event, both countries and Gibraltar stand to gain by a co-operative arrangement across the border as 40% of the Gibraltar workforce crosses from Spain into Gibraltar each day to work. The Andalusian region around Gibraltar stands to gain from economic collaboration. That means that orderly arrangements for the border are essential. This points to the need for the Spanish and British Governments to work in their common interest on Gibraltar and well before any final agreement on the EU is put to Parliaments.
Against this background we need to reassure the people of Gibraltar. The Prime Minister has confirmed to Parliament that Gibraltar will not be excluded from the negotiations for either the transition period or any future agreement and that we will take account of the interests of Gibraltar and its unique relationship with the EU. It is good that the Joint Ministerial Committee on Gibraltar is working effectively and in a positive way. However, the people of Gibraltar need not just reassuring words but clear legal reassurances, wherever possible, that their acquired rights, which are in existence now, are preserved through this Bill, and that both the transition and the final outcome apply to them.
Most importantly, access to the UK market for Gibraltar’s well-regulated financial services remains vital for it constitutes 90% of all Gibraltar’s business with the EU. This and future growth must be guaranteed for the future. There must be no discriminatory treatment against Gibraltar at any stage as a result of this Bill or any forthcoming legislation concerning our arrangements with the EU. Anything that can be done in this Bill and future ones to reinforce this point will help ease the minds of Gibraltarians. They have been loyal to us in good times and bad. We in turn must do whatever we can to assure their future.
I look forward to the Minister’s response. I hope he will confirm that the Government are committed to providing legal as well as verbal assurances to the Chief Minister, Mr Picardo, and the people of Gibraltar.
Lord Blackwell (Con)
My Lords, while noting my business interests as set out in the register, I would like to make it clear that I will be speaking in this debate and at later stages of the Bill in a purely personal capacity as a Member of this House.
Listening to the debate, I note that many views have, of course, been expressed around the House on the merits of what we are embarked upon. Noble Lords will know that I was, and remain, a supporter of the argument that Britain had no option but to leave the European Union as it progressed towards political and economic union. Despite what the noble Lord, Lord Bilimoria, said, after the Lisbon treaty we were not signed out of that. However, those arguments are now behind us. Article 50 has been triggered and I urge all noble Lords, whatever their past views, to now come together to ensure that we make the best of the future that we will now have outside the European Union. I was pleased to hear that view echoed in many contributions from around the House.
I will make two points based on what I have heard. First, as we debate the Bill, it is important that we promote a positive and optimistic view that encourages the nation to seize the opportunities ahead of us. The decision to leave was not, for me—or for most people, I believe—primarily an economic equation. But while we of course hope that the European Union will agree to an arrangement that upholds its principles of free trade with our large, neighbouring but independent economy—for its benefit as well as ours—we should be confident and optimistic about our ability under any scenario to compete and prosper as an open, global trading nation in a world where growth will be driven increasingly by the faster-growing new economies around the world. I therefore ask those who are unhappy about our decision to leave to cast aside their pessimism and avoid overstating the negatives, for the greatest damage we can do to our UK economy is to undermine confidence by talking ourselves down, both domestically and in the view we project to overseas investors.
Much is made of economic forecasts, but economic forecasting is not a science, and the reality is that the output of economic models largely reflects the assumptions fed into them. The truth is that the UK economy has been and remains resilient. As my noble friend Lord Ridley pointed out, we did not plunge into a recession in 2016, and strong economic growth continues to defy the economic pessimists. Unemployment has not soared; instead we have 400,000 more people in work than a year ago and the lowest rate of unemployment since the 1970s.
As we look forward we should recognise that we will continue to have a huge competitive advantage as a nation in our culture of innovation, our legal and political systems, our language, our flexible labour market, our strong and high-value service sector and our global network—not least with the somewhat neglected but fast-growing Commonwealth countries. We should see those countries as our gateway to the future growth economies, not dismiss them as a relic of the past. All these factors will be increasingly important advantages for the UK as we move into a new era where the basis for economic success is transformed by the revolution in digital technology and artificial intelligence. These are areas where we in the UK are already building a strong entrepreneurial base. Our success in managing this economic transformation will have a far greater impact on our future employment and living standards than the margin of error on current economic forecasts. It is a much more important area to focus on.
As I said, our future as a nation is not just about economics; let us talk positively about the opportunities of our vision for Britain as an open, outward-looking global trading nation. If we view everything from the negative mindset that we are engaged just in damage limitation, we will never inspire people to seize those opportunities and will do our country down.
Secondly, we in this House can also do our bit to remove uncertainty and build confidence by giving the Bill, which the other place has approved, a fast and supportive passage through this House. I recognise that many noble Lords have expressed concerns about the provisions for secondary legislation that will enable EU law to be transcribed into our own legal base. While it is clearly right for these powers to be scrutinised, we need to be realistic about the scale and urgency of the task. The powers are rightly circumscribed by a two-year sunset clause.
I do not accept the argument that some make that it is somehow less democratic for a UK Minister in an elected Government to lay a statutory instrument for our Parliament to approve than it is for that law to be imposed by European institutions that can override the UK Government and Parliament. I have sat for periods on your Lordships’ committees looking at delegated powers and the merits of statutory instruments, and I have a high level of confidence that our process of scrutiny—with the additional procedures suggested by my noble friend Lady Evans—will be able to hold Ministers and civil servants to account.
I therefore strongly support the passage of the Bill through our House and I urge other noble Lords, whatever their past convictions, to join in building confidence in this country’s future success.
Baroness Miller of Chilthorne Domer (LD)
My Lords, yesterday in your Lordships’ House we were paddling our canoes up the pleasant reaches of the environment plan, warmed by cosy aspirations and promises. But I am afraid that today our paddles will be swept away and our canoes overturned as the tsunami of Brexit sweeps away environmental protections. The pleasant aspirations of the environment plan are absolutely no protection compared to that offered by the EU directives.
We are being asked to take it on trust that such important things as the “polluter pays” principle, the sustainable development principle and the precautionary principle will be properly applied. But trust will not save a single habitat or clean up a single river. We are asked to take it on trust that there will be a strong statutory body capable of holding the Government to account. The difficulty is that that body may not be created for years, if at all, it may not be strong, and it may be underresourced. In the meantime, there is a solution to all this. There is no reason why the Government cannot put the principles I mentioned in the Bill. Currently, we do not even have a full list of the environmental functions carried out by EU bodies or which UK bodies will fulfil them in future so that we can see what is urgently needed beside the legislation that we must amend in the Bill.
The Environment Secretary proposes only a consultation on a new policy statement on environmental principles to apply post EU exit. This consultation will explore the scope and content of a new statement on environmental principles to underline our commitment. That is not nearly enough. Our job in this House is to make the Bill fit for purpose to protect the environment, making sure that the protections for habitats, species and people are all enshrined in the Bill.
I agree with the right reverend Prelate the Bishop of Leeds that the Bill should not just talk about the economy, which so many noble Lords have talked about. We will be diminished by Brexit culturally, scientifically—our scientists are no longer part of the network of European research—and in just about every way I can think of, but it will not be so bad for us as it will be for our children and grandchildren. Our natural heritage will not just be diminished but could be destroyed. Even if the Government manage eventually to fulfil their best intentions and bring in protections, there is likely to be a gap of years. We cannot afford to have that gap, which will be taken advantage of by people who would like to make a quick buck by not worrying about the “polluter pays” principle. We therefore need to amend the Bill and make sure that all those protections are in it, as they should have been from the beginning.
Baroness Finlay of Llandaff (CB)
My Lords, 10.17 million people live under devolved Administrations in the UK. They want the best deal for Britain, whichever way they voted. They expect their devolved Governments to argue on their behalf. They did not vote to lose powers. The concern in Welsh and Scottish government is so great that both bodies have unanimously voted not to sign the legislative consent order for the Bill. Why? Because they both want to see a withdrawal Bill that works effectively while respecting devolution.
The devolution settlements are all based on a binary model, with some differences. Scotland’s model of reserved powers will also become the model in April under the new Wales Act 2017. The Sewel convention means that Parliament will not normally legislate in areas of devolved competence without the consent of the devolved legislatures. The word “normally” is important. The situation does not warrant that Parliament should legislate without the consent of the devolved Administrations. We are not in a crisis at war. Ignoring the refusal of devolved consent has never risen before; it is not needed now. The Bill requires careful, considered amendment.
The intersection of EU powers and those of the devolved Administrations has meant the latter’s legislation cannot be incompatible with EU law—a restriction on freedom or competence of legislation and policy-making that currently also applies to Westminster, and which will be lifted by the repeal of the European Communities Act 1972. It is not a question of powers coming back from Brussels, but a decision about where they will go as those restrictions are lifted. Wales and Scotland feel that as far as the effect of the Bill on the devolution settlement is concerned, restrictions on legislative competence in policy areas should be removed, as the Supreme Court said in the Miller case.
This Bill reads differently, however. It proposes changes that put new restrictions—a new set of shackles—on the legislative and executive competence of the devolved institutions, allowing the UK Government unilaterally to lock down opportunities to shape their own policies. There are many examples of policy areas where Scotland and Wales have diverged from Westminster. Take, for example, the charge on plastic bags, minimum unit pricing of alcohol, tobacco control measures at their outset, organ donation now and the different ways in which their health services are organised. The Bill, however, would give Ministers of the Crown powers to make corrections of retained EU law in areas of devolved competence without consultation with the devolved institutions. Such an ability to change an Act of the Scottish Parliament or of the National Assembly for Wales without any input from the legislature or Ministers answerable to it is clearly unacceptable.
The Joint Ministerial Committee with the devolved Governments must become statutory; it is currently not working well. There must be governance arrangements for a group that meets regularly, agrees its agenda well in advance and allows the devolved Administrations to initiate policy proposals. It must also contain a mechanism for the resolution of potential areas of legislative conflict early, without the need to go to the courts for interpretation of the law. Frameworks are also essential to ensure a common UK approach when needed, that respects the principles of the territorial constitution.
Clause 11, as drafted, does the exact opposite. Last September, Wales and Scotland suggested amendments—I have a copy of the letter written by their First Ministers to the Prime Minister. When this Bill went through the other place there were promises of government amendments but none materialised. In her helpful and warm opening speech, the noble Baroness the Leader of the House implied that the development of these amendments is proceeding well. Unfortunately, as of last night, neither the Cabinet Secretary for Finance in Wales, nor the Minister for UK Negotiations on Scotland’s Place in Europe from the Scottish Parliament could reflect such a positive view.
The constitutional implications are great. If the devolved Governments are forced—and I use the term advisedly—to push through the continuity bills that they have drafted in order to allow them to function effectively on behalf of their population, then we really will be faced with a constitutional crisis. Therefore, I ask the Minister for reassurance that amendments will not be sprung on us at the last minute and without adequate consultation with the devolved Administrations. We in this House must not be put in the invidious position of making decisions that run counter to good government arrangements between the Governments of the UK, and which concern over 10 million people. To borrow a phrase, “nation must speak unto its nations”.
Lord Bowness (Con)
My Lords, like other noble Lords I accept that if there is to be Brexit, there has to be a Bill for legal certainty. But it must not give rights to the Executive at the expense of Parliament, and it must be sufficiently flexible to cope with circumstances which over the period of our negotiations may change. It must also ensure that our future is determined by Parliament. In the words of the noble and learned Lord, Lord Hope of Craighead, the Bill is in a sorry state and Members have the right to support, speak for and, if necessary, vote for amendments within the constitutional parameters of this House. We should not be frightened off by my noble friend Lord Dobbs: this is not “House of Cards”.
It is very easy to answer questions by accusing the questioner of trying to thwart the will of the people. I, like many others, feel I have been the victim of a prolonged hijack, and I believe that hard Brexit is a minority interest. In 2010, David Cameron opposed a referendum, but eventually, after pressure and rebellion, capitulated, and in the 2015 election promised the in/out vote on the reform he had negotiated. How was it that immediately after the referendum the Government adopted an extreme position of no to the single market, no to the customs union, and no to an EFTA, EEA, Norway or Switzerland-type arrangement? We heard a great deal about the Government’s need for the freedom to negotiate without disclosing their hand to Parliament, but at a stroke we declared to a bewildered world that we wanted out of everything yet wanted a deep and special relationship with the EU—the “have your cake and eat it” position. This was maintained at the 2017 election and is now portrayed as the choice of the people because of the referendum and general election votes.
In neither of these campaigns did anyone explain the effect of these policies. To be fair to hard Brexiteers, perhaps they have only just become apparent. The hijackers, as I see them, seem to be in denial about the existence of problems despite the evidence, and the attacks upon the Chancellor and, indirectly, the Prime Minister suggest that their fervour for a hard Brexit is undiminished. Was the Ireland/Northern Ireland situation explained? Frictionless borders mean nothing when it comes to the detail. Did we explain that new arrangements for trade will need a mechanism to resolve disputes? How is a tribunal which is not a UK court different in principle from the Court of Justice of the European Union? Did anyone explain that if there was no deal, customs delays would have a serious impact on the pharmaceutical and motor industries, to name but two? In such industries, small, frequent and rapid shipments are the name of the game.
We were assured that no deal is better than a bad deal and that we could trade on WTO rules, but who explained that tariffs are only part of the story? The UK and the EU cannot grant each other more favourable terms than each is prepared to grant other World Trade Organization countries. We are told that we should have no problem dealing with the EU on WTO rules, as do the US and China, but were we told about mutual recognition agreements—MRAs—which are principally concerned with non-tariff barriers, and are arguably more important than tariffs? The United States has 135 such agreements with the European Union. Without a deal we would not only have no agreements with the European Union but also abandon the MRAs that the EU has with countries like the US and China. The MRAs are not simply WTO rules: they have to be negotiated.
The noble Lord, Lord Hain, has already referred to the 60 or so free trade agreements that the European Union has with other countries. We cannot just pick these up at will. There will have to be negotiations between the European Union, ourselves and third countries. It already appears that a joint submission to the World Trade Organization by the European Union and the UK on the division of quotas has been objected to by the United States, Australia and New Zealand. Perhaps the Minister will bring us up to date on how well that is going?
Let us have no more of how easy it will all be if we revert to WTO rules. That claim is in the same category as the £350 million on the side of the bus. However good a deal we get, it cannot be as good as the one we have now as members of the European Union. This game, as I said in an earlier debate, is just not worth the candle, so it makes sense that, if there is to be Brexit, the changes to the current arrangements should be as small as possible. Even at this late stage, the idea of the single market, the customs union, membership of EFTA or the EEA, or even the status quo should be not be removed from consideration.
It is therefore vital that the Bill before us gives Parliament, and principally of course the House of Commons, the opportunity to extend the proposed leaving date, to establish a meaningful transition or implementation period, and to have a meaningful vote, including rejecting any deal and certainly no deal. I am certainly attracted to the idea of the Government seeking a mandate, as outlined by the noble and learned Lord, Lord Falconer. It is a matter for Parliament and, although I share many of the sentiments of the noble Lord, Lord Adonis, I cannot support calls for a referendum when we have so recently seen how flawed and misleading such campaigns can be.
Like millions of other citizens, this hijacked citizen wants to be freed. I do not want to be on a ship which is steering a course through dangerous waters to a place unknown when there is a known and safe haven available. I want reality to dawn and our citizens to be told the consequences of the policies that we have adopted to implement their decision. Yes, we can leave the European Union if we must, but we can head for a safe haven—there is no need deliberately to sail into uncharted and rocky waters.
Baroness Drake (Lab)
My Lords, this Bill preserves existing EU law as it applies in the UK, converting it into domestic law as retained EU law to provide legal continuity and certainty on exit day. It gives Ministers extraordinary correcting powers to amend such retained law where they consider there is a deficiency. We are therefore in, as the Constitution Committee observes, “uncharted territory”, so it is unsurprising that many organisations have expressed concerns that the Bill gives rise to ambiguity about the status of the different categories of retained EU law and that the Government are given abnormally wide powers to amend legislation.
In Committee, this House will examine whether those powers are greater than are needed for the task in hand, if and how they should be restricted, and the level of transparency and scrutiny that precedes the deployment of those powers. As my noble friend Lady Taylor of Bolton referenced, the Constitution Committee expresses the view that the overly broad powers that the Bill grants to Ministers to do whatever they think appropriate to correct deficiencies in retained EU law are “constitutionally unacceptable”. It goes on to suggest controls, such as “good reasons” statements, to be put in place on the proposed use of those powers.
Many important areas of law will be impacted by the Bill, and I want to reference workplace and equality rights—clearly a people’s issue. Clause 2 preserves EU-derived domestic legislation when the UK exits. That is important, as it addresses many EU-derived equality, employment and health and safety standards and rights, including where existing UK law has exceeded minimum EU standards—for example, on important maternity leave rights. Examples of other rights include the Working Time Regulations, the Transfer of Undertakings (Protection of Employment) Regulations, agency workers’ rights and equal treatment for part-time workers and fixed-term employees.
Clause 4, importantly, preserves the right to equal pay for equal-value work, which flows from Article 157 of the Treaty on the Functioning of the European Union. The impact that Article 157 and the accompanying EU Court of Justice case law have had on women’s pay and pension rights in the UK cannot be overstated. However, there are deep concerns that the “correcting powers” which the Bill affords to Ministers could be used to weaken such rights, including those contained in existing Acts of Parliament, such as the Equality Act. A range of workplace and equality rights in retained EU law could be vulnerable to change by subordinate legislation contained in other Acts of Parliament when that retained law does not have the enhanced protection that flows from EU membership.
Last December, the Prime Minister failed to rule out scrapping the working time directive, the agency workers directive and the pregnant workers directive. Maternity rights and part-time workers’ rights appear at risk. As the Fawcett Society powerfully observed, it would be regrettable if Brexit and this Bill resulted in the loss of the opportunity to be the best place in the world to be a woman.
There needs to be a robust process of scrutiny to ensure that executive powers in the Bill cannot be used to make changes in significant areas of policy and enhanced protections for key rights. There is also the question of Court of Justice of the European Union case law post exit, which the noble Lord, Lord Kakkar, spoke about at some length. Domestic courts will not be bound by such case law, but there are strong arguments to be put in Committee that courts should have regard to such judgments where they are relevant to the proper interpretation of law which originated from the EU. Without such regard, people in the UK may see their rights weakened.
It is also unclear how provisions in the Bill may be affected by future negotiations. During any transition period, the UK may not be able to weaken retained EU law. Future agreements on UK and EU relations may require the UK to comply with EU law, including on workplace rights. We need to understand those implications when we look at this Bill.
Finally, I return to a matter that I have raised previously. It may not seem significant to many in the great scheme of economic affairs, but it is hugely important to the people affected, and that is the need to replicate the protections from violence against women and girls post exit day. Women and girls at risk of violence may lose significant legal protections. European protection orders, which grant victims equivalent protection against perpetrators across the EU, will no longer be available to UK citizens. The ability to share data on perpetrators and a host of other measures aimed at tackling human trafficking, female genital mutilation and the sexual exploitation of women are also at risk. We need to understand how these rights and protections will be preserved post exit day.
Lord Shipley (LD)
My Lords, it is a pleasure to follow the noble Baroness, Lady Drake, and to have listened to her important observations on equalities and employment rights, and the potential for them to be weakened in this and other Bills. I congratulate the noble Lord, Lord Bowness, on his excellent demolition of a hard Brexit. As he said, a hard Brexit is a minority interest. Indeed it is.
In an earlier contribution, the noble Lord, Lord Hill, said that there is political paralysis caused by Brexit and that the Government need to reduce uncertainty. I agree with him, and I agree with all those business leaders who are urging the Government to start showing some leadership, given that we are half way through the period allowed by the triggering of Article 50. It is staggering that so little has been done and equally staggering that the Cabinet seems incapable of even proposing what it wants from our future trading relationship with the European Union.
Much has been said about the need for frictionless trade with the EU, and I think we are all in favour of that. However, I am prepared to acknowledge that frictionless trade means that we must stay in the single market and the customs union and that, if there are substantial changes to those structures, we will need a transition or implementation period of several years. Two years or less from March 2019 is simply not long enough, given the enormity of the changes that would be required. Anything other than staying in the single market and the customs union will hit investment, jobs and growth. There is already evidence that growth is lower than it could be and that it will go on being so, caused entirely by the uncertainties over investment that Brexit is causing.
That point was made recently by the Governor of the Bank of England, who estimated that Brexit is costing the UK about £200 million a week in lost growth. This is compounded by the fact that there now seems to be some evidence that all the uncertainties are causing the banks to get increasingly nervous about company borrowing levels post Brexit, and they will be looking closely at companies seeking to borrow without having developed a secure post-Brexit business plan. A failure of companies to invest is in no-one’s interest because it will cost growth and jobs.
Exit from the customs union will lead to soaring red tape, with new customs rules and paperwork, as the CBI has pointed out. It will hardly be frictionless. VAT will have to be paid up front. All the major changes will come as a huge shock for tens of thousands of companies that export only to the European Union that currently have frictionless, borderless trade and that have no experience of the paperwork required to export to places other than the European Union. How will those companies understand the required documentation and the rules?
I have heard it said recently that the Government are yet to train the people who will train the staff in the relevant companies. What checks are being made by Ministers on who is doing the necessary preparatory work and what resources are going into it? How many businesses might lose business because they do not know what they should be doing and fall foul of the rules? We should note that the French announced recently that they expect to spend three years training their customs staff.
In a recent report, the National Audit Office said that the Department for International Trade is struggling to develop specialist trade skills among staff and has therefore slowed down its work. Apparently, one of the problems is that staff have moved too often in Whitehall. The failure to deliver trade deals will lead to less growth and fewer jobs, yet the Department for International Trade has had an extra £25 million in the current financial year to prepare for Brexit. What has that been spent on?
I conclude that there is so much uncertainty that the British people have the right to be consulted again on the terms of Brexit, as negotiated. There are two reasons for that. The decision to leave the EU was made in a referendum. Constitutionally, I find it difficult to see why the people should be denied the right to a final say on the exact terms of Brexit once Parliament has debated those proposed terms. I draw the attention of the Minister to the fact that, in recent polls, the majority of the public want a referendum on the final terms. The last one I saw, a few days ago, showed 58% support for a confirmatory referendum. However, importantly, 85% of 18 to 24 year-olds and 74% of 25 to 34 year-olds wanted the right to vote on the final terms. I do not think we can disregard the views of young people, who will have to live with the consequences of Brexit. I agree entirely with the noble Lord, Lord Wilson of Dinton, who a few moments ago talked about this issue. As I recall, he said that we have to bear in mind how history will judge harshly those who disregard the views of the young.
Lord Empey (UUP)
My Lords, naturally I want to begin by referring to the Irish border question, as we are one of the regions most affected by the decision taken in 2016. I believe that the question of the Irish border has almost been weaponised in this debate because, in my view, the scale of the problem has been grossly exaggerated. Statistics are dangerous things, but I want to give some figures from the Irish Central Statistics Office. In 2015, imports to the Irish Republic from Northern Ireland accounted for 1.6% of total Irish imports. Coincidentally, the percentage of exports to Northern Ireland from the Irish Republic amounted to 1.6%.
Of course, that does not tell the whole story. It is perfectly obvious that there are local issues, particularly around agriculture, the movement of animals and things of that nature, and the processing that continues. We have to put this into perspective, however. When people bandy around language about threats to the Good Friday agreement, most of those making such claims did not negotiate the Good Friday or Belfast agreement and, as far as I am aware, have not consulted any of us who did. We should bear in mind that we should be cautious with language, because people are using this for political purposes. It has been used deliberately in the Republic, by Sinn Fein, to try to create a huge crisis. It is a difficult issue—there is no question of that—but I believe that there is a will on both sides of the Irish Sea to resolve it. I also believe that the United Kingdom Government will not put up a border. The only threat of a border comes from Brussels forcing the Irish Republic to put one up, and we all know that, politically, it is impossible for them to do so. Therefore, we have to look at alternative mechanisms. There are quite a number at our disposal. I appeal to colleagues to remember that when they use such language and this example, it is seized on by elements not in favour of a peaceful outcome and a settlement within the constitutional framework that the agreement set out to achieve.
I am glad that the noble Lord, Lord Foulkes of Cumnock, is back in his place. Earlier, in his contribution, he said that he wanted the devolved Administrations to have a legislative consent Motion and that one from each of them would have to be in place before a decision could be taken. I hope he realises what he is saying. He would be giving a veto on the future of the United Kingdom’s position in the European Union to Sinn Fein because it would have the ability in the Stormont Assembly—if it were functioning—to veto any legislative consent Motion, irrespective of the terms. He must understand that that is the inevitable consequence of what he is saying. I accept that there are consequences to and difficulties with the devolution settlements. People need to realise something about the powers that would naturally come back to the devolved Administrations. The devolved Administrations —and the United Kingdom as a whole—have not had any input on, for example, agricultural policy for 46 years. We have no capacity at the present time, let alone the devolved Administrations.
Energy is another key issue. We have constructed, or are trying to construct, an all-Ireland energy market, but it is not an energy market on its own. It is connected by both gas and electricity to Great Britain, and our UK energy market is physically connected to France. Clearly, big issues there need to be resolved. I also want to make a point about mutual recognition agreements, particularly as they apply to things such as medical devices. The CE safety mark that applies to many goods is one of the matters that we will have to thrash out as the legislation proceeds and other Bills come before the House.
I close by making the point that we talk about the wonderful trade opportunities we have. That is true, but we are still running an £80 billion deficit with the European Union. While it is vital to maintain the maximum amount of trade that we can, there is something seriously wrong with how we are doing business if we have a £1.5 billion a week loss on trade, week in, week out. What is wrong with us? There are clearly other policy issues. Our membership, or lack of it, of the European Union is not the whole story. It is a part of it but not all of it.
One thing I became aware of recently was that many people in this country feel an allegiance to the European Union that almost exceeds their allegiance to the United Kingdom. I had not been aware of that before. I understand that there are lots of people out there to be convinced, but we have had the referendum. It was an “in or out” referendum and the Head of the Government made that clear. Parliament passed the law and, whatever our position as a party—already alluded to by the noble Lord, Lord Kilclooney—it is done. We should get on with it and get the best possible deal, but trying to rehash the thing will merely create further division and leave us with no prospect of a future.
Lord Hamilton of Epsom (Con)
My Lords, I shall address the amendment to the Second Reading of the noble Lord, Lord Adonis, which calls for a second referendum. It has rather been dismissed because noble Lords say that this is not the Bill to amend in that way so we should not consider it. But we should consider it because around the House there seems to be a certain amount of support for the whole idea of a second referendum. That raises more questions in my mind than it answers.
The first question is: when would we have the second referendum? Would it be in October this year, when the negotiations should have been completed and before it is ratified by the 27 different countries in the EU and the EU Parliament? Or, would it be when the agreement had come back, having been ratified in March next year, just before we leave the EU under the Article 50 provisions? Or, let us face it, the devil is always in the detail, and we could go through the next 21 months laid down by Michel Barnier and have the final agreement with the EU. The problem is that at that point we would have left. There is a timing problem that needs to be addressed by those in favour of a second referendum.
The next question is what you put on the ballot paper. Do you ask: “Do you like this deal, and if you do, do you want to stay in the EU?”, “Do you dislike this deal and still want to stay in the EU?”, or “Do you dislike this deal and would like to leave the EU”? It is complicated, whichever way you look at it. It is so complicated that all it would do is create more confusion, rather than anything else.
Then there is the noble Lord, Lord Foulkes, who would like a parliamentary vote to say that we have changed our minds and we will stay in the EU. I ask him what position that puts me in. I have campaigned to leave the EU but Parliament tells me that I cannot. There I am, with a decent majority in the country who voted in the referendum to leave, but Parliament says, “No, it was all a great mistake and we should stay in”. I have no option then but to take to the streets because I cannot get any representation in Parliament. All I can do is protest outside Parliament.
Lord Hamilton of Epsom
We have dealt with the referendum. The referendum is extremely complicated. I do not know that there would be a clear answer.
The accusation is that the Government have negotiated extraordinarily badly. I will not defend the negotiations; I think we played a weak hand very badly. But at the end of the day, these negotiations go on with the EU. Before we could continue the negotiations, three totally bogus things were raised. One was that we had to agree on the Irish border. Hold on: the Irish border will be the only land border that we have with the EU when this is all over. How can we separate that from a trade deal that we do with the rest of the EU? It is absolutely ridiculous. How can you treat EU citizens living in this country separately from the immigration policies we will have with the EU when a final deal is done? Then there is the money. It was said that we must agree on the money before we agree anything else. I heard somebody say the other day that it was rather like walking into a restaurant and calling for the menu and for the waiter to come along and say that you had to pay for your dinner before you had even ordered it. The whole thing is ridiculous.
The bill for what we had to pay started at €100 billion. It has come down a bit, I am glad to say. But why are we being accused of being intransigent? The noble Lord, Lord Wilson, said that there was a great argument for not being hurried. Hold on: I have never stopped hearing from the EU that the clock is ticking and that we must get on—all these ridiculous elements have been raised that we must deal with before we can move on. As far as I can see, all the delay has come from the other side, not from the Government.
Then there is the constant argument that we do not know what we want. Yes we do: we want an ad hoc free-trade agreement with the EU so that we can carry on selling things to it and for it to sell more to us, as we have been doing so far.
I finish on the whole issue raised by the noble and learned Lord, Lord Hope of Craighead. He asked a viable question about the powers taken under the Bill. I have campaigned for years to try to get powers back from Europe. Let us face it: those powers are massive, as the noble Lord, Lord Pearson, reminded us. The Henry VIII provisions were used to impose EU edicts on Parliament. I am not in the business of seeing the Executive taking all those powers. We should re-strengthen Parliament and take advantage of that at this stage. Maybe we should have a sunset clause so that these powers lapse after a period, but it is not our business to see the Executive strengthened as a result of the Bill.
Baroness Thornton (Lab)
It is of course a great pleasure to follow the noble Lord. I did not agree with very much of what he said, but I was trying to imagine him out on the streets, which gave me pause for thought.
Being No. 54 of 190 speakers, there is a possibility that I have might say something that has not been said before. We have heard some wonderful speeches about the defects and gaps in the Bill, and I bow in deference and gratitude to the recommendations of the Constitution Committee, whose report will help us enormously in the next stages of the Bill. But as we all know, only when legislation is applied to real-life issues—the consequences for people, their jobs, families and well-being—will we identify the gaps and unintended consequences. In many ways, like my noble friend Lady Drake, I want to talk about people’s issues. However, I believe that the noble Lord, Lord Empey, is quite wrong when he says that the Northern Ireland border issue is being exaggerated. My family in Cavan do not agree with him at all. Why would we put in jeopardy the Good Friday agreement?
As the Labour health spokesperson, I will address my remarks to the realities of Brexit for our NHS and research. Like many noble Lords, I too have received briefings from many different sectors and many say the same thing—that their sector needs to remain within European Union regulatory regimes to thrive, and they plead for clarity and certainty about what will happen. That plea echoed around this Chamber in speech after speech today. I am grateful to Cancer Research UK and the Association of the British Pharmaceutical Industry for their work on clinical trials regulation.
The UK has been heavily involved in developing the existing regime, which will harmonise the assessment and supervision process for clinical trials via a central European Union portal and database, currently being set up by the European Medicines Agency. In 2019, the new regime kicks in and this presents a problem of great uncertainty. This means that the clinical trials regulation, the CTR, will not automatically be captured by this Bill. It is not clear whether the UK Government will look to align with the regulation or seek access to the EU portal and database, and in what timescale. As a priority, the Government should immediately provide greater clarity on plans to ensure UK alignment with the EU clinical trials regulation. What specifically will be the mechanism for UK access to the portal and database?
I cannot think of a more potent issue than alignment with the clinical trials regulation when discussing access to innovation and new medicines. Cures for rare and childhood cancers, for example, and rapid UK access to them are at stake. Similarly with drug regulation, when will the Government offer certainty that the UK will have agreement with the EU to ensure we can continue to take part in the EMA’s centralised procedure for drug licensing? Any future drug-licensing system must not exacerbate delays in access to the most innovative treatments for patients in the UK and across the EU. Again, certainty is needed.
Equally, people are at the heart of this Bill—people who work in our health service, both the scientists and the medical staff, who move across the European Union with ease at present. Can we be confident that the Home Office will design a future immigration system that enables us to attract, recruit and retain global scientific talent at all professional levels, regardless of their nationality, and the nursing and other medical staff who enable our NHS to function?
And what about the patients? I know and welcome the good intention of the Government to continue some version of the European Health Insurance Card, which symbolises the many benefits that the European Union brings to all its citizens. However, even my inexpert reading of the Bill suggests that this will be an extremely difficult or impossible thing to obtain. As one expert said in his evidence to the House of Lords European Union Select Committee:
“European governments did not adopt mechanisms to allow their citizens to access healthcare elsewhere for reasons of altruism. The welfare of a drunken participant in a stag party in Prague or Krakow never entered their thinking. Instead, their goal was to support one of the European Union’s four fundamental freedoms, the freedom of movement of people. Quite simply, a single European labour market would be impossible if those moving for employment, either permanently, or … on a daily basis, could not be assured that they would be looked after if they became ill”.
The same applies to those who live in Europe. This flies in the face of this Bill and the Government’s stated intentions, and it leads me to my last point—honesty.
When will the Government be honest with the people of the UK about what they will lose post Brexit in their access to healthcare if they travel and work in Europe, and indeed in many other matters revealed today in the leaked impact report? Almost every sector of the British economy included in the analysis would be negatively impacted in all the scenarios, with chemicals, clothing, manufacturing, food and drink, cars and retail the hardest hit. Just when will the Government come clean about how this will affect people and their families?
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I am happy to follow the noble Baroness, Lady Thornton, particularly as on this occasion she has said nothing to make me change my speech. I remain a remainer but, for the purposes of this Bill, regard that as a complete irrelevance. As many have said, this is a necessary continuity Bill to transpose EU law, which represents a large part of our existing law, into UK law when we repeal the 1972 Act. In short, it will avoid a huge legal vacuum if and when we leave the EU.
That said, save in one eventuality only, the entirety of this Bill could and in some ways—pace the noble Lord, Lord Wilson of Dinton—should more appropriately be dealt with not here but in the next Bill. The withdrawal agreement and implementation Bill will come along later in the year when, one hopes, we will know—at least to the extent of heads of agreement—the basis on which we are leaving. The one eventuality in which this Bill truly would be crucial would be if—one hopes it is a remote “if”—the Government at some point abandoned negotiations for an agreed withdrawal and we simply crashed out of the EU on exit day. Then indeed, with no prospect of a later Bill, a continuity Bill to keep our laws intact would be required. That eventuality apart, why can all these provisions, as to what should be retained law and our future approach to it, not be part of the implementation Bill?
In all probability, we will initially leave by a transition, implementation or standstill period—call it what you will. During this period, we will continue to recognise the jurisdiction and jurisprudence of the CJEU. Given that, surely the point at which EU law will be frozen and, as retained law, become part of UK law will be at the end, not the beginning, of that transitional period. Clauses 2 and 3, which in effect freeze EU law as at exit day, will have to be amended, presumably by the implementation Bill itself rather than by any of the highly contentious regulation-making powers in this Bill, most notably Clause 9(2).
Incidentally on the question of the Bill’s regulation-making powers, not only do Henry VIII powers—executive powers to repeal or amend primary legislation —need to be curbed; so too we should place controls on the Executive’s power by secondary legislation, which is generally unamendable and not that closely scrutinised, to implement policy decisions that are more properly the subject of primary legislation.
That takes me to the Constitution Committee’s recommendation in yesterday’s report that “retained direct EU law” should have the legal status of “domestic primary legislation”. That is a most interesting recommendation. Instinctively I am inclined to agree, in so far as it would prevent retained law being changed merely by executive regulation by secondary legislation. However, I am less convinced that retained law should not be subject to the Supreme Court, as proposed under Clause 6(4)(a) and 6(5), being able to depart from it as it can from its own or previous House of Lords decisions under what lawyers know as the 1966 Practice Statement—exceptionally and only for compelling reasons. That is essentially the test now proposed in the Bill.
I have a final word or two about the Charter of Fundamental Rights being disapplied by Clause 5(4). I see no good reason to retain the charter. We are of course retaining the Human Rights Act and our full acceptance of the reach of the European Convention on Human Rights. The convention and the Supreme Court’s ever-growing readiness to invoke our own historic common law, as necessary, fully meet our human rights requirements. It is true, as the noble Baroness, Lady Smith of Basildon, pointed out in her speech, that David Davis himself invoked the charter last year when making his complaint against the UK about investigatory powers, but all that is now expressly taken care of in the Data Protection Bill that we have just passed on.
The charter, I suggest, would needlessly complicate things to no good purpose. It is, at best, of uncertain reach, applying as it does only to the implementation of EU law, which is, of course, to become a past concept. The present criteria for deciding the scope of EU law is already described as “incredibly ambiguous”. The charter, of course, consists both of rights, essentially mirroring ECHR and other international law rights, and of principles. The latter are mostly social and economic, are really aspirational and without direct effect. In short, I accept the Government’s arguments on the charter, but clearly there are aspects of the Bill that will need amendment and we look forward to 10 busy days to deal with those.
Lord Patten of Barnes (Con)
My Lords, if the Foreign Secretary were able to be with us today—we should be so lucky—he would doubtless remind us of the story in Sophocles’s “Oedipus” about the great Sphinx that devoured young Thebans if they could not answer its riddles. I think that the great Sphinx in British politics for the last two or three decades has been our membership of the European Union: it is making a pretty good job of devouring the Conservative Party and a good deal else in politics. How has it happened? I follow my right honourable friend Kenneth Clarke in making this point. I joined the Conservative Research Department in 1966, partly because the Conservative Party was intent on getting this country into what was then called the European Common Market. Throughout my time in politics, the Conservative Party has been in favour of us playing a leading role in the European Union. I was a Minister in Margaret Thatcher’s Cabinet and a Minister in John Major’s Cabinet. So what happened?
As noble Lords know, we joined the European Union when we were being called the sick man of Europe. We pretty well got the European Union on our own terms. There have been a couple of important, significant changes along the way. First was the single market, with the Single European Act sustaining us. If they were here today we could say, “Take a bow, Margaret Thatcher and Arthur Cockfield”. The other big change over the last few years was the enlargement of the European Union, again very largely the result of the leadership of this country and of Conservative Governments. Those have been changes, I concede that, but I do not think that they are the sort of changes that should deprive us of our senses. There has been, of course, another change, which is the referendum and its result. Referendums, my noble friends will recall, were described by Margaret Thatcher as,
“a device of dictators and demagogues”.
No demagogues here, of course. There was a bit of alliterative ranting by one of our noble Viscounts earlier, but no demagoguery in this place. So why did we have this referendum?
The whole House knows that for many years it has been recognised that loyalty is the secret weapon of the Conservative Party. Sometimes, as John Major would remind us, it is so secret that it can be barely discerned by the human eye. The whole House knows that we had this referendum in order to try to manage the Conservative Party and it blew up in the Government’s face. So now we face not just the consequences for our international affairs but the consequences for the way in which we do politics in this country, as my noble friend Lord Higgins indicated so eloquently in his speech. I hate referendums. If we vote at some stage to have another referendum on membership of the European Union, I will oppose that legislation. I think that referendums are appalling and a sin against parliamentary democracy.
I have talked about secrets. There is another secret that concerns me. During the referendum campaign, the Secretary of State for the Environment said that, once the negotiations began, we would be in the driving seat. The secret is: where are we going? What are we driving? Is it a bandwagon or a hearse? What genuinely surprises me is that so many of my honourable and right honourable friends spent all those years moving from safe house to safe house under cover of dark to arrange what has now happened, plotting and scheming away to get it, and when we get there they do not know what to do. They have forgotten the rest of the trick. I have to say to my noble friend who spoke earlier that his approach to what we should be now doing seemed to me a tad broad brush, rather like his espousal of civil disobedience.
I just hope that at some stage we can find out what the Government want to do, particularly in relation to the Northern Ireland border with the Republic. I listened to my noble friend Lord Empey, but I also listened to two former Secretaries of State for Northern Ireland and to a former Cabinet Secretary. This is a serious issue. If A equals B and B equals C, then C equals A. If Northern Ireland is to have a frictionless border with the Republic and Northern Ireland is, as it will remain, part of the United Kingdom, then the United Kingdom as a whole will have a frictionless border with the European Union, unless we are going to redefine the borders of Northern Ireland. We are in a position where what suits Belfast suits the United Kingdom: it has to. I do not take what my noble friend Lord Empey said about Sinn Fein seriously when this Government are being sustained by the DUP. I hope to have the opportunity when we get to Committee of moving one or two amendments about the relationship between the border and the Good Friday agreement.
In the meantime, I look with horror at what is happening. There is a great line in Shakespeare’s “King John”:
“So foul a sky clears not without a storm”.
Exactly.
Baroness Royall of Blaisdon (Lab)
My Lords, that was a superb speech. The sky is indeed foul, but it is up to us to try to do something about it.
The speeches today and tomorrow are many, but there will be few disagreements. The vast majority, like mine, will show acute concern about the rudderless nature of the Brexit misadventure, the lack of vision or of preparation and the fact that, as the noble and learned Lord, Lord Hope, said, the Bill comes to us in a sorry state. I am profoundly dismayed about the way in which the Prime Minister continues to put party before country, desperately trying to find a fudge that will keep her in government, if not in power, and placating the Brexiteers, whose thirst for leaving the EU is unquenchable. I fear that this fudge will mean that everything possible will be done to ensure that the much-promised meaningful vote will not be about a firm framework for the future but rather about a heads of agreement which has been described as an expression of intent and aspirations. As ever, for the Prime Minister it will be the politics of her party rather than the policies for our country that will determine success if we exit the European Union on 31 March next year.
All the detailed negotiations that will determine the future prosperity of our country and the security of our citizens will, as we always advised, take place after 31 March, during a transition period. That is crazy. The detailed negotiations will take place at a time when we will have no voice and no influence in the Council, the Commission or the European Parliament. I realise that because of the all-pervading influence of the Brexiteers it would be anathema, perhaps suicidal, for the Prime Minister to suggest that, rather than a lengthy transition, we should seek to extend the Article 50 deadline, but that would be the right thing to do. It would ensure that Ministers remained in control during the negotiations. We are constantly told that the main reason why people voted to leave the European Union was, indeed, about control.
I share the concerns expressed about this fundamentally flawed legislation: the undermining of legal uncertainty; the extension of delegated powers; the impact on our economy and quality of life, et cetera; the impact on the protection of jobs and the rights of workers and consumers; the impact on the protections for women and girls, including those that they currently get from the European protection orders; the guarantee of the peace process; and so much more.
My right honourable friend Sir Keir Starmer did a brilliant job in the Commons and has shown real leadership and huge skill in extending the parameters first set down by my party. I know, too, that my noble friends Lady Smith and Lady Hayter will do likewise. Indeed, they will provide great leadership for this House. I will certainly support their amendments, which, I am sure, will receive wide support across the House. I will also, however, urge them to go further and to embrace membership of the single market and the customs union, which is critical for all parts of the United Kingdom, especially Northern Ireland. That is what we have agreed to do as part of the transition process, but for the sake of our economic and social well-being we need it to be permanent. If we do not secure our economic future in this way, we will not be able to implement the education, health and social policies that are urgently needed to heal our deeply divided society and address the burning inequalities identified by the Prime Minister.
In some of the poorest areas of the UK, EU funding has made a huge difference. It is essential that areas such as Cornwall and the Isles of Scilly, which would have qualified for £350 million from EU structural funds in the next budgetary period if we remained in the EU, continue to be properly funded. Can the Minister reassure me that there will be a properly funded, locally led successor to EU regional aid?
Focusing briefly on education, I remind noble Lords of my interests in the register. In Oxford in 2015, 18% of our staff, 15% of our students and 14% of our research funding came from the EU. Each of those areas is now being undermined by Brexit. In terms of research, development and innovation activities, in the last seven-year financial framework the UK as a whole contributed €5.4 billion to the EU and the EU contributed €8.8 billion to the UK. Not only is the UK the most active participant in Horizon 2020, but our institutions co-ordinate about 20% of the projects that have been funded so far. Our collaboration and our influence are extraordinary. With Brexit, the number of EU academics resigning has gone up exponentially, suggesting that it is increasingly difficult for our universities to attract the best in the world. This is critical for our research and our reputation.
What assurance can the Minister give that our new relationship with the EU will not jeopardise the ability of our universities to participate in future EU framework programmes and conduct world-class collaborative research with EU colleagues, to host ERC grants and influence future research agendas or to recruit and retain the best staff, and to recruit students, regardless of nationality? We should heed the words of Chekhov:
“There is no national science, just as there is no national multiplication table; what is national is no longer science”.
Research and innovation are just two of many areas in which we collaborate with our European partners: exploring ideas, exchanging best practice, finding common solutions to common problems, benefiting our own citizens as well as those in other countries and strengthening relationships. Some partnerships are bigger than others, but all contribute to fostering understanding between peoples and organisations.
I am proud that the People’s History Museum, which I chair, recently secured €271 million from the EU as part of the Culture Lab project involving partners from six member states. Our pilot project will explore the impact of Brexit on migrant communities in the UK and the EU and we will work with local migrant and non-migrant communities to explore how, as Jo Cox said,
“we are far more united and have far more in common than that which divides us”.—[Official Report, Commons, 3/6/15; col. 675.]
For me, those words encapsulate not only what I believe to be the reality of the United Kingdom but the reality and the ethos of the European Union. In 2012, the EU received the Nobel Peace Prize for advancing the causes of peace, reconciliation, democracy and human rights in Europe. The right reverend Prelate the Bishop of Leeds was absolutely right. Membership of the European Union, and what comes afterwards, is about more than trade and the economy; it is about values, tolerance, respect, a space to disagree agreeably and hope not hate. In this difficult and dangerous world, it is our responsibility to seek the best possible outcome as we break our ties with this alliance of sovereign states, which has changed our continent and our country for the better.
Baroness Northover (LD)
My Lords, we know that Brexit would initiate a major constitutional, political, social and economic change to the United Kingdom. The right revered Prelate the Bishop of Leeds was right to address the wider social and cultural implications. The economic factors themselves, however, have serious political and social effects. Perhaps it is not surprising that we have had strong populist movements since the financial crash of 2008. We should therefore heed the noble Lord, Lord Bilimoria, and indeed Mark Carney, when he notes that Brexit is already costing the United Kingdom around £200 million a week in lost growth.
Today we hear that the Government have finally undertaken economic impact assessments of three possible outcomes, ranging, in effect, from soft Brexit to no deal. In none of these scenarios is our economy as strong as it would be if we remained in the EU. Anyone who has read the so-called impact statements that were hidden away in DExEU cannot but be chilled by the worries from stakeholder after stakeholder about leaving the EU. In sectors such as the life sciences industry, higher education and other service sectors where the UK has a leading edge, the challenges are most acute.
Yet no one knows quite where we are heading, as the chiding of his Government by the noble Lord, Lord Hill, made clear, as did the noble Lord, Lord Patten, in an amazing speech. The Government cannot reconcile the diametrically opposed forces in their own party to plot a way through. The passionate speech from the noble Lord, Lord Bridges, made that clear. Suggesting one course produces a massive abreaction from one side. Suggesting another, an abreaction from the other. Hence the poor officials who draw up legislation and are sitting in the Box today have been mandated to give wide powers to Ministers, depending on the outcome of negotiations and where a future Government wish to head.
However, that will not do. Even the noble Lord, Lord Strathclyde, hints that it might not. In the Sanctions and Anti-Money Laundering Bill there was the same dilemma, with wide Henry VIII powers proposed—or Oliver Cromwell powers, to take the point of the noble and learned Lord, Lord Hope. The Government should know from the sanctions Bill what is likely to happen here. An amendment on this constitutional matter, in the name of the noble and learned Lord, Lord Judge, won by 80 votes. The noble and learned Lord has already offered his services to parliamentary counsel on the sanctions Bill. This Bill could do with his services, too. The Minister on the sanctions Bill must have been acutely aware that those seeking to tackle those constitutional affronts were rightly called Hope, Judge and Pannick.
There are of course other changes that we should seek in this Bill. We must ensure that Parliament will be given a meaningful vote on the deal, as other EU Parliaments will, as was noted by the noble Baroness, Lady Smith of Basildon. Given that this process started with a vote of the people, surely the people should be given a vote on the deal. As the noble Lord, Lord Mandelson, pointed out, whether the UK was in or out of the single market or the customs union, for example, was not on the ballot paper. The Government have emphasised that no UK citizen would lose rights as a result of leaving the EU. It is difficult to square that with losing the right to live and work elsewhere in the EU.
There are, however, further threats in the Bill. I briefly mention those in three clauses. The powers in Clause 7 could, for example, be used to water down the Equality Act 2010, as Maria Miller and others pointed out in the Commons, and as emphasised today by the noble Baroness, Lady Drake. Clause 8 addresses Britain’s international obligations. My noble friend Lord Wallace of Saltaire outlined the challenges here. We know that the UK’s role globally will be reduced by being outside the EU. The Commons Foreign Affairs Select Committee reported today on serious understaffing in embassies across Europe. This must be addressed, if we are to engage as Ministers suggest, but we will have reduced resources with which to do that. We have already seen our reduced influence when we could not secure a second term for the UK judge in the International Court of Justice. This was for the first time in its history and despite lobbying hard through our embassies across the world.
Clause 8 does have a protective subsection, which my noble friend Lady Bowles borrowed for the sanctions Bill. It says, for example, that,
“regulations under this section may not … create a relevant criminal offence”,
which is something we had to knock out of the earlier Bill. But as the Constitution Committee notes, we still need to limit the powers here to those that are necessary and reasonable. Then we come to the astonishing Clause 9, which in effect allows a Minister to modify more or less everything in the Bill and, it seems, any existing law. I think not.
There will be close scrutiny of the Bill in this House. I hope the Government will be as open to working with us as they were on the Sanctions and Anti-Money Laundering Bill. They will have heard the voices behind them, as well as those to the side of and in front of them. I am sure they know that we cannot simply give them and all future Governments a cheque book full of signed blank cheques.
Baroness O’Neill of Bengarve (CB)
My Lords, I have two interests to declare because I shall talk about the movement of people on the island of Ireland and between our islands. I was born in Northern Ireland and am entitled to Irish citizenship as birthright. I currently use a UK passport. My identity is British and Irish, although because of the oddity of UK practices of recording ethnic classification—seemingly contrary to the Northern Ireland Act 1998—I am not allowed to state this for standard UK administrative purposes, and usually have to classify myself as “White other”. I am also on the advisory board of These Islands.
A very large number of questions have been raised about the adequacy of the Bill’s approach to dealing with retained EU law, particularly but not only in the devolved nations. That is the proper focus for this debate; we should concentrate on the constitutional adequacy and competence of the legislation, not on wider questions about Brexit.
The devolution settlements are far from uniform, as we know, which makes it harder to see what is proposed and whether it is adequate. But it is uncontroversial that the Northern Ireland settlement differs from the Scottish and Welsh settlements not merely in its provisions but in its status. Other noble Lords have spoken with more authority on this highly relevant matter. The noble Lords, Lord Hain, Lord Empey and Lord Patten, all mentioned it. This is because the Belfast or Good Friday agreement is an international agreement between the Republic of Ireland and the UK, which, alongside many other provisions, established the North/South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference. Part 5 of the Northern Ireland Act 1998 mandates participation in the cross-border institutions.
It follows that any moves to change retained EU law after Brexit raise two distinct issues in Northern Ireland—more than two, in fact, but two very important ones. First, as for the other devolved Administrations, it raises questions about changes in devolved matters post Brexit being made by the UK Government, rather than by the relevant devolved Parliament or Assembly. Secondly, unlike the other cases, it raises questions about the UK Government’s commitment to work not only with the Northern Ireland Assembly and Administration—as we all know, these are not currently in action—but, as required by the Belfast/Good Friday agreement, with the Government of the Republic of Ireland and to have regard to the Belfast principles, which include partnership, equality and mutual respect. Will the Government write into the Bill a commitment to meet these conditions in making changes to retained EU law that bears on Northern Ireland post Brexit? What forms of interaction with Northern Ireland office-holders and with the Dublin Government will the Government commit to in order to meet these requirements? Those are my two questions to the Minister.
I believe that clarity about such restrictions post Brexit is vital. We are in the curious situation that although the Government have insisted for almost 18 months now that they do not seek a hard border on the island of Ireland, they have yet to say anything about how this is to be achieved. To be sure, we cannot say much about the trade aspects until those negotiations are further advanced but we can say something about the movement of peoples. Over a year ago, I asked a previous Secretary of State for Northern Ireland how it was to be done. She—or he—replied, I thought a bit casually, “By passports”. That was interesting. Who is to show a passport, where and for what purposes? We know that it is not to be on the Irish border, which is to remain soft, or between Northern Ireland and the rest of the UK, which would be intolerable to our constitutional integrity. We also know that thousands of British and Irish citizens constantly cross the border and the Irish Sea, many of them frequently, without showing passports. Noble Lords who travel only by air often forget this reality. But after Brexit if it happens, Irish policies on the free movement of labour will diverge from those of the UK and there will have to be an enforceable policy regulating the movement of persons.
My own guess is that if there is to be no hard border, any workable approach will require everyone in the UK—not just in the island of Ireland—to have a passport or equivalent secure ID, and to show it when performing significant life transactions such as taking up employment or opening a bank account. I do not think this needs to be a violation of privacy. It would provide less information for better defined purposes than the common practice of carrying a smartphone, but I am aware that this is a sensitive matter for many on the Conservative Benches. That is the sort of nitty-gritty matter which lies beneath the questions of the amendability of retained EU law post Brexit, particularly its adequacy in Northern Ireland. I hope the Government can bring forward an amendment to require compliance with the Belfast agreement in making any post-Brexit changes to retained EU law.
The Duke of Montrose (Con)
My Lords, it is always a great pleasure to listen to the clear, analytical thinking of the noble Baroness, Lady O’Neill.
The Bill implies a fairly radical impact on two areas that have always been at the centre of my concerns: one being Scotland and devolution, the other being agriculture and fisheries. My interests, as many of your Lordships will know, have meant a lifetime spent in farming livestock in Scotland, and I have just retired after five years as president of the National Sheep Association of the United Kingdom. We have heard today from all Benches in this House highlights of the major areas where the Bill will have its effects. I want to look at just two that are major for me. The first is how we deal within devolution with abolishing EU authority when European regulation was the central core of our legislative arrangements. Similarly, the second is how we see the management and support of our rural areas.
The noble and learned Lord, Lord Hope of Craighead, alerted the House to how far the present powers of the Bill simply will not do in the long term for Scotland and other devolved settlements. I am sure the promise made by the noble Baroness the Leader of the House in opening this debate that the Government already have in mind amendments that they wish to bring in offers some promise. But even if those will help us on our way, it is worrying to note the level from which we have started.
My noble friend Lord Bridges of Headley explained to us earlier the task that the Government were faced with in drawing up the Bill. Seen from that Westminster perspective, one can see how it was understood that these measures would give logical, incremental steps to overcoming the problems that leaving the EU will present. But the proposed powers provoke questions as well as answers. From the Scottish perspective—as the noble and learned Lord, Lord Wallace of Tankerness, was alerting the Government—it seems, for a start, that it does not fully fit in with the procedure for implementing legislation that the Scottish Parliament works under. Many noble Lords have centred their disquiet on the extensive Henry VIII powers that are presently contained in the Bill. But nothing has been said here today that matches the panic that the presence of these powers has triggered in the Scottish Government, with dreams of what they might be used for if there were a hostile Administration in Westminster. I know that that is not the plan at the moment, but from their perspective it is something that rears its head.
The briefing document on the Bill, issued by our own Library, said that the Government had issued to the devolved Administrations a list of the various measures that will have to be returned from the EU as we leave. The Library has very kindly provided me with a copy; the list contains 111 measures. This is only to underline the probable emphasis that will affect my second area of concern, which lies in agriculture, fisheries and rural life. Of these 111 measures, 43 will have a direct involvement in these areas. It is also the area covered in the various devolved Acts. Have the Government made it clear to the devolved Administrations how many of these measures they are already prepared to agree to hand over; and if not, why not? This is particularly true of the area which I have so recently been involved in, which is sheep. I think it is generally accepted that this is the section of agriculture that stands to lose the most from any departure from our present arrangements. I am sure many noble Lords are aware that this industry is reliant on Europe for setting present-day market prices. It is also reliant on exports for 35% to 40% of production. No deal could imply tariffs of up to 50% or £2 per kilo at the European border.
As a further illustration of the problems of the Irish border, which were emphasised by my noble friend Lord Patten a few minutes ago, our worries in this area are eclipsed by those of our farmers in Northern Ireland, who export an even bigger percentage of livestock and who might find themselves with a border with the Republic that would also affect not just exports but the very considerable trade there presently is in both directions at all times of the year across that border.
I look forward to seeing how much improvement we can make to this legislation in the coming weeks.
Baroness Lister of Burtersett (Lab)
My Lords, the Bill raises fundamental questions about not just the Brexit process and accountability to Parliament but also, as the right reverend Prelate reminded us in an inspiring speech, our vision of a good society post Brexit. In the Article 50 debate, I spoke about the sense of loss felt by me and by many who wrote to me as we are stripped of our European citizenship and the fundamental rights it affords us. Membership of social Europe has contributed to many of the social and other rights we enjoy today. With regard to the current Bill, fears have been expressed by those speaking on behalf of, among others, women, children, disabled people, LGBT people and workers, and also about environmental protections. How far we are able to allay those fears by strengthening the protection provided for equality and human rights has to be a litmus test of the effectiveness of our scrutiny of the Bill.
The Equality and Human Rights Commission and others have proposed various ways of providing such protection, including the introduction of a constitutional right to equality; the implementation of a socioeconomic duty, contained in the Equality Act 2010; a means of keeping pace with wider European equality and human rights law; and inclusion in the Bill of a clause embodying the principle of non-regression of equality rights, as recommended by the Women and Equalities Committee, among others. On this last matter, the government amendment in the Commons does not go nearly far enough. It does not actually protect equality rights and it applies only to secondary legislation, despite the Minister’s commitment to the Commons that it would apply to primary legislation also. Can the Minister explain why the Government have reneged on that commitment?
The other main means open to us is to retain the European Charter of Fundamental Rights, the key piece of EU law expressly not brought over, contravening the Bill’s “general rule”,
“that ‘the same rules and laws will apply after exit as the day before’”.
I have read the debates in the Commons and, unlike the noble and learned Lord, Lord Brown, I have yet to find a convincing argument to justify its exclusion. We are told that it is unnecessary because it adds nothing new. It will not affect substantive rights, the Leader of the House assured us. But in fact it includes certain rights and principles not covered elsewhere in our legislation, referred to in the Commons as a third category of rights, such as the right to dignity and a number of important children’s rights, including the fundamental duty to give primary consideration to children’s best interests. Can the Minister say how this duty will be protected in the absence of the charter or the incorporation of the UN Convention of the Rights of the Child into UK law?
The Bingham Centre for the Rule of Law warns:
“We will lose fundamental rights protection in certain areas”.
It points out, as did Lady Hermon in the Commons, that, without the charter, the obligation in the Good Friday agreement to an equivalence of human rights protection in Northern Ireland and the Republic is undermined. Can the Minister explain how that equivalence will now be maintained?
Even if, for the sake of argument, it were unnecessary, as the Government claim, what would be lost by now responding to the wide range of organisations, led by the statutory body with the responsibility for promoting equality and human rights, calling for its inclusion? Like the Constitution Committee, I do not understand why an exception should then be made to the general principle of legal continuity. Of course redundant rights specifically connected to EU membership could subsequently be removed, so that is no real argument. As it is, the Government’s position will be seen a symbol of the weakness of their commitment to human rights, despite protestations to the contrary.
The other argument, that to include the charter would sow confusion and legal uncertainty, is contradicted by the legal opinion obtained by the EHRC; by experts on European law, including the group convened by the Bingham centre and the UCL Constitution Unit; and by the appendix to the JCHR’s commentary on the right-by-right analysis, referred to earlier by the noble Baroness, Lady Hamwee. They argue the exact opposite: that its exclusion is a recipe for legal uncertainty. Surely the Government’s aim, as set out in the rather unconvincing right-by-right analysis,
“to maximise certainty and minimise complexity”,
is better met by having all these rights codified transparently in one place.
The Government repeatedly fall back on the protection provided by the Human Rights Act to counter calls for the charter’s inclusion. But given their earlier desire to repeal the Act, forgive me if I do not take much comfort from a commitment to it that is limited to the lifetime of the present Parliament. Wherever we stand on our exit from the EU, I hope that we can be united in our commitment to a society built on principles of equality and human rights, and therefore ensure the retention of the European Charter of Fundamental Rights as both a symbol and a cornerstone of that commitment.
Lord Stirrup (CB)
My Lords, during the referendum campaign I argued and voted for the UK to remain a member of the European Union. I still believe that to have been the better choice, but I and those who think as I do were outvoted, and I must accept that. However, the fact that we are leaving the EU leads me to certain general conclusions about the way ahead. I will touch upon these briefly, as they have been raised in this debate already and are relevant to my approach to the Bill before us today.
I start from the proposition that no one, not one single person on this planet, whatever their political persuasion, can be trusted with power. Of course some people have to hold power and wield it if systems are to work and society is to function effectively—but they should never be trusted while they hold it. Our constitutional solution to this conundrum is to ensure that qualifying citizens have the undoubted and frequently exercised right to throw out those who have the ultimate power to make the laws under which we live and by which we are governed—that is, Members of the other place.
The need for such a check on power is what makes me believe, with regret but very firmly, that, transitional arrangements aside, we cannot both leave the EU and remain within the single market and the customs union as they are currently structured. To do so would leave us exposed to the power of those who govern those institutions and subject to the costs which they would levy upon us, with no opportunity to influence their decisions or to hold them to account. We would be left in a position that in many respects would be similar to that which caused such distress to the American colonists in the 1760s and 1770s.
Equally, it is the need for a check on power that leaves me so very uneasy about several things that are proposed in the Bill. It would give the Government the authority to create laws without parliamentary authority and without adequate scrutiny. That already happens to a degree, but it is the unprecedented scale of the executive power now being sought that is of such concern to me. The Government will say that they need the ability to operate free of parliamentary constraint if they are to cope in a timely fashion with the unexpected twists and turns that they will encounter on the road to Brexit. I accept that argument to a point—but only to a point. Whatever the practical considerations may be, the kind of unfettered powers envisaged in the Bill are dangerous both in principle and in practice.
The stated purpose of the Bill is to ensure that the UK has a functioning statute book the day that it leaves the EU. Very well—that is of course important. But the statute book also has to contain laws that have been arrived at through due process. Nobody could reasonably argue against the requirement for effective laws, but that requirement by itself is insufficient. Effective laws are not necessarily good laws. The Government will perhaps argue that they have already conceded a degree of parliamentary scrutiny through amendments passed in the other place—but these are little more than a broken reed. They give Parliament no real power in the matter.
Having had experience of both sides of the divide, I know that government departments often view parliamentary oversight as a nuisance. They believe that it creates a lot of work over issues that are not of great moment. That can in some cases be true, but it is no reason for weakening such oversight. Like many other noble Lords, I suspect, I have seen a number of occasions when Ministers have used scrutiny override powers, citing the pressure of time. Sometimes the excuse has been valid, but sometimes just a little effort would have avoided the need for such an override. The pre-emption of parliamentary scrutiny has sometimes been a matter of departmental convenience rather than true force majeure.
With this in mind, I am forced to conclude that parliamentary scrutiny is of value only if it has real muscle—certainly much more than is proposed in the Bill. I entirely accept that it is all a question of balance. The trouble is that the proposals before us today are grossly unbalanced and imperil an important control within our democracy. I do not expect the Government automatically to do the wrong thing, but neither do I trust them always to do the right thing. I urge the Minister to think very carefully about the fundamental issues involved here rather than just about the short-term practicalities.
I will support no amendment to the proposed legislation that attempts to derail the Brexit process, but I will be inclined very strongly to favour any amendment that is intended to constrain the largely unfettered power with which the Executive have so unwisely sought to clothe themselves through the provisions in the Bill.
Baroness Hooper (Con)
My Lords, this is a historic debate and I wish to claim my moment in history, just as I felt I was doing in 1979 when I was elected to the European Parliament—the first democratically elected international Parliament in the history of the world. Subsequently, as a Minister in your Lordships’ House, I participated in Council of Ministers meetings leading up to the Maastricht treaty, always hoping that the UK was playing a constructive part in building an economically strong, united and peaceful Europe. I concur with the noble Lord, Lord Krebs, about the often forgotten but most important peace dividend that our membership of the European Union has brought. The only good thing that can be said about the present realignment of our relations with our European neighbours is that it is not taking place in the wake of a war, as happened so often in the past.
We have been assured today that this is just a technical Bill and that, as my noble friend the Leader pointed out, there will be no change on the day of exit. In other words, it may be a change de jure but it is not a change de facto—at least, not to start with. That a transitional period is required if we want a smooth transfer is hardly surprising when we consider the way in which we have been working closely with our partners in the European Community, the European Economic Community and now the European Union for almost 50 years. To be in receipt of many and diverse briefings from organisations and individuals affected and concerned about this Bill illustrates the complexity of what we are facing and the way in which Brexit impinges on so many of our institutions, organisations and citizens.
As far as having a second referendum is concerned, I never want to see another referendum, and certainly not a referendum that brings about constitutional change without at least a two-thirds majority requirement. This is probably the only point on which I agree with my noble friend Lord Hamilton of Epsom, who sadly is not in his place to hear that. I shall follow with interest the arguments in favour of a second referendum, because it is important to understand the thinking of those who think it could work.
In scrutinising the Bill, I shall have particular concerns about the environment and the creative industries. The former has been raised today but not, so far, the latter. I am also taking an interest in the role of the devolved legislatures of the United Kingdom. The noble and learned Lord, Lord Hope of Craighead, put this issue in the right context when he said that this is a constitutional Bill, not merely an enabling Bill, because of the need to take into account the devolved legislatures that did not exist when we joined the European Community in 1973.
I shall concentrate my final remarks on the overseas territories. The noble Lord, Lord Luce, dealt comprehensively with Gibraltar’s special case. In the justified consideration of the border in Ireland, Gibraltar’s border with Spain has slipped out of the spotlight, and there is yet another forgotten border for which we are responsible: the border between Anguilla and France, in the shape of Saint Martin. There are other ways in which these tiny territories are affected. What about British Overseas Territories passport holders post Brexit? Will they still be able to travel freely throughout Europe? There is great concern about that.
At a meeting with parliamentarians from Bermuda today, a question was asked about the exchange of tax information treaties and the common reporting standards treaties which they are obliged to follow within the European Union. What about the European development funding that some of the overseas territories receive? Will that be replaced by direct UK funding? These may seem small matters affecting small groups of people, but they should not be overlooked, and I shall take every opportunity to remind the Government of the need to consult, inform and reassure the overseas territories to keep them in the loop, notwithstanding that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, would probably say that these are matters for the withdrawal implementation Bill—when, of course, I shall raise them again.
This has been an excellent and good-humoured debate so far, and I trust we can continue to avoid a bitter and acrimonious approach during future stages of the Bill. The right reverend Prelate the Bishop of Leeds struck just the right note on that at the outset, and we are indebted to him. I liked the quotation from Margaret Thatcher’s Bruges speech, referred to earlier by the noble and learned Lord, Lord Wallace:
“Our destiny is in Europe”.
I hope that, whatever happens post Brexit, we shall have a strong and enduring relationship with our European neighbours.
Lord Campbell-Savours (Lab)
My Lords, I need to make it clear that the views I am about to express are my own views and not the policies of my party. I campaigned for a yes vote in 1974 and have remained committed to the European ideal for nearly 50 years.
In the March debate last year, I set out my concerns over the direction of travel. It seemed to me that the public was greatly troubled by European inflexibility on subsidiarity and troubled in particular over the operation of free movement, the loose policing of Schengen and the lack of tight control over our borders, which I believe stands at the heart of the leave vote.
I believe that we now need to squeeze Europe on this whole question of border controls and immigration. We need to challenge this EU pillar and seek a new deal. I know there are difficulties, so we need a tough negotiating stance, but we should concentrate on this issue, which is concerning the public. If we hold the line, I am confident we can win a second referendum. With dark clouds of intolerance sweeping across Europe, we now have a duty to act. Let us deliver to the people on the main issue that they voted on, and let the people decide again. Brexit has opened that door.
What do I mean by holding the line? In November last year, a group of highly influential German industrialists launched a petition campaigning to keep the UK in the Union. The lead signatories were all major industrialists, three of them former presidents of the BDI, the equivalent of our CBI. They proposed an alternative to withdrawal, and by consequence, to today’s Bill. I support their initiative. It calls for “A New Deal for Britain” and a rethink. The petition they tabled says:
“We, the undersigned, are deeply concerned about the economic and political impact Brexit will have on Britain and the EU. We believe that mistakes made by both sides will lead to a highly detrimental situation for citizens and companies both the UK and the EU.
In our view, Brussels has too often violated the principles of subsidiarity … and competitiveness as laid down in the Lisbon treaty. This is what helped create the base for the British referendum in the first place. Brussels has contributed to the outcome by refusing to offer the necessary flexibility to let Britain control its immigration.
In Britain, on the other hand, advocates for Brexit failed to communicate the true impact it would have on the economy. Those who campaigned for Britain to remain failed to properly illustrate the advantages of being a part of the EU, especially when it comes to the common market and research programmes.
Meanwhile, ongoing negotiations show that both parties have underestimated the complexity of Brexit. It has also emerged that keeping the border open between Ireland and Northern Ireland without Britain’s continuing membership in a common market may well be impossible. This entails significant risks for peace on the island.
Buying more time will not address the basic fact at hand: if not stopped, Brexit will result in an outright lose-lose situation for both the EU and Britain. More than ever, the EU needs the pragmatic British voice to counter increasing pressure to centralise, socialise and harmonise. That is why we feel obliged to stop this train wreck in the making and appeal to all responsible politicians, business people and citizens: Let us stop them now and avoid a tragedy of monumental proportions!
Addressing the European Parliament … Donald Tusk … opened the possibility of ‘no Brexit’ giving us the motivation to ask the leaders of the European Union to recognize their responsibility for a political turn around by offering the British a New Deal, focussing on subsidiarity, especially in the area of immigration. We remind them of the fact that following the British referendum there has been a remarkable shift among European Governments their thinking on the sensitive subject of migration in the EU.
Likewise, we appeal to London to recognise that it underestimated the complexities of Brexit and its economic and political drawbacks. With a New Deal from the EU, Britain will be able to say that it finally got what it really wanted.
This would also be a New Deal for all other EU member states recognizing the new realities. Not only could they benefit from the continued membership of Britain in the future, they would also benefit from more self-responsibility”.
The key point here is that this was tabled by German industrialists. It shows the movement in opinion in different parts of Europe.
To those who follow our proceedings, the petition is available online, under the title, “A New Deal for Britain”. These German industrialists are not only speaking for British and German interests; they are also speaking for wider Europe. They know what is in the interests of Europe. We should listen carefully to their message and respond positively.
Lord Purvis of Tweed (LD)
My Lords, it is a pleasure to follow the noble Lord. I agree with much of what he said, and I hope that his Front Bench will agree with him before the Bill has passed through this Chamber.
As referred to earlier in the debate, we received a delegation of Norwegian MPs in Parliament this week. I met them yesterday, and as they were leaving, one of the MPs, a member of the EFTA parliamentary group, took me aside and said, “We think in Norway that we have a closer relationship out of the EU than you have in, so what are you going to do now that you will be out of everything?”. The only thing I could think of, as a proud trustee of Sir Walter Scott’s home in Abbotsford, in my beloved Borders, was the quote from “Marmion”:
“O what a tangled web we weave
When first we practise to deceive!”
This measure seeks to disentangle the tangled web of deception by some who put forward the arguments for Brexit in the referendum. It is preparing us for an unknown destination, as many Members, on all sides, have said.
This measure is not just a continuity Bill. It is not merely a technical measure, as some have argued. It establishes a new category of law in England and in Scotland. It alters the characteristics of our 20 year-old, settled approach to devolution. It is worth stressing for those who have made the point on devolution—from my noble and learned friend Lord Wallace, to my noble friend Lord Steel of Aikwood and the noble Baroness, Lady Finlay of Llandaff, in her very measured contribution—that, between the referendum in 1975, the devolution referendum and today, we have had devolution for half of the period that we have been members of the European Union. These are norms and practices which have now been an established part of the British constitution for half the period of time that we have been members.
In the absence of a written, codified constitution, our constitution is based on norms and statutes. As the noble and learned Lord, Lord Hope, and others have said, these norms are being up-ended and our constitution is being affected. As a direct consequence of the Bill, it will be necessary to form new common frameworks of governance within the United Kingdom over policy areas which had previously come under the auspices of the EU. There is some agreement at executive level on the areas that these will cover, but so far there has been nothing about scrutiny and how the legislation will apply to those.
The breaking of the norms is in many ways more significant than the breaking of the rules—norms based on trust, respect and the recognition, as the noble and gallant Lord, Lord Stirrup, said, that those with power need oversight. That is the same when it comes to the relationship between certain component parts of the United Kingdom as it is for the citizen’s relationship with government. These norms have become even more important in the more complex world that we live in.
I have lived all my life in a country that is a member of the EU and its previous smaller Community. The world I was born into in 1974 had 3.9 billion people living in it; today, there are 7.5 billion of us. Then, the world economy was worth $5.5 trillion; last year, it was nearly $77 trillion. Then, there were only 34 democracies in the world; today, there are 87. The expectations of people of their rights and of their hopes of their democratic Governments are exponentially greater now than when we joined the European Union. The world is incredibly more complex than it was then.
It is no surprise, then, that while we hear much about tariffs and trade, the growth in non-tariff measures is now much more significant than the tariff measures. There were 1,500 in the mid-2000s; today, there are 2,500. Because these non-tariff measures are about standards—health and safety, and the environmental standards to which we have become accustomed—it is very troubling that we will see the Trump and country first approach.
To take one sector in particular, one vital for the British economy, aviation is worth £57 billion to the British economy. The UK, through our membership of the European Union, has led the debates on liberalisation. We have led, not followed, and the regulations that apply have in many respects been designed by the United Kingdom, using the European Union as a platform for the world. When I was born, there were 400 million air passengers in 1974; in 2016, there were 3.7 billion. To ensure safety and efficiency in this complex web of regulations, it is very worrying that the Government do not have today a clear position on the EU-US Air Transport Agreement.
We do not need to forecast or repeat assertions; we can simply look at the record of the Government since the referendum. There are the red lines which were set which are now being blurred. There was the comment from the Foreign Secretary that the European Union could go whistle rather than demand the £39 billion to which we have agreed. The UK said that we would start the talks only if we could negotiate the new relationship at the same time as the withdrawal agreement, which we have now gone back on. We have said that we will follow all the single market rules during the transition period, and that we will seek to adhere to European rules on medicines, aviation and financial regulation. Those strong Brexiteers have been critical of all those areas.
Our relationship with the European Union will not be healed by this process. Sometimes, the relationship between the UK and Europe has reflected what our former colleague, Earl Russell, described as the relationship between England and Scotland:
“England could brook no equal, and Scotland no superior”.
Our relationship with Europe is not the same as other countries’ relationship with Europe, but our process now will not heal the wounds in the Conservative Party.
However, I am more concerned about healing the wounds of those who were disfranchised in the referendum —the 16 and 17 year-olds who will have to live with the consequences longer than any other. They did not have their say. I hope that they will have their say. Those who will be living with the consequences need to have a voice.
I have quoted Scott before:
“Faces that have charmed us the most escape us the soonest”.
That was present with many of the promises from those for Brexit. They said, “Let the people decide”. When it comes to whether the withdrawal agreement is in the best interests of those who will live with its consequences, I feel I have to say, “Let the people agree”.
Lord Lisvane (CB)
My Lords, it is no exaggeration to say that if the Bill before us is enacted without significant amendment, it will represent the largest single peacetime transfer of power from Parliament to the Executive. By comparison, the 1972 Act was a model of restraint.
This is not what we were led to believe in the referendum campaign by the use of phrases such as “parliamentary sovereignty” coupled with “taking back control”. The leave/remain and soft/hard/no deal debate no doubt continues unabated, but that is not where criticism of the Bill should lie. The Constitution Committee has done an excellent job on the Bill. In passing, I gently observe, in the distinguished presence of the chairman of the committee, that some of its recommendations are a little less exacting than those of the Delegated Powers Committee, of which I am a member and which I expect to produce another report in time for the start of Committee.
The issue here is parliamentary sovereignty in the making of law, which the Bill challenges and will constrain—and, not least in the power to make tertiary legislation, not only constrain but extinguish. No one doubts that flexibility and speed will be needed to adapt our legal order to life after Brexit, but it cannot be at the expense of the power of Parliament to scrutinise and decide.
As one or two noble Lords have alluded to, it is worth remembering that once extensive ministerial powers are on the statute book, they can be used by any Minister of the Crown. Her Majesty’s present Ministers may not welcome the thought, but were the powers they now propose to be in the hands of an Administration of a different political colour, I fancy there would be a great deal of traffic down the legislative road to Damascus. It is important to keep in mind that assurances about how powers are intended to be used are of limited value. The only thing that matters is what is on the statute book.
The Bill will, no doubt, be heavily amended by your Lordships’ House. Issues of real concern include the looming presence of a largely unconstrained Henry VIII. Although Henry VIII has become a convenient shorthand for the exercise of ministerial powers which erode parliamentary sovereignty, the dangers of the other delegated powers in the Bill are just as serious. I pay tribute to the speech of my noble friend Lord Wilson of Dinton. There is the Bill’s substitution of ministerial judgment of what is “appropriate” for what is “necessary”, allowing major changes of policy to be made under a power intended, we are told, to make purely technical adjustments to the repatriated legal order.
There is the ability of Ministers to confer on bodies and even individuals the power to make law—tertiary legislation—without the approval of Parliament or even the requirement to publish that law. There is the fact that the superficially reassuring sunsetting provisions do not apply to substantial areas of ministerial power. There is the ability of Ministers, not Parliament, to decide the level of parliamentary approval required for the exercise of many of their delegated powers. There is the ability to impose taxation by statutory instrument, not primary legislation.
The mechanics of approving a final deal will no doubt be an issue, despite the extreme difficulties of timing involved, alluded to by the noble Lord, Lord Hamilton of Epsom. In a parliamentary system of government, I am no friend of referendums, and I recall Attlee’s excoriating criticism of them, which was quoted by Margaret Thatcher, as the noble Lord, Lord Patten of Barnes, recalled. I am genuinely torn. I have sympathy with the noble Lord, Lord Adonis, in not understanding why, when it is all right to ask the people once, it is not all right to ask them again—not the same question, of course, but to see whether they are content with what has been achieved in their name.
Indulge me for a moment, my Lords. It is as though I have three elderly and extremely nervous aunts of whom I am very fond. I decide to give them a treat and ask them to discuss what they would like to do. They have a discussion and arrive at a democratic solution, which is that they would like to go to the cinema tomorrow. I look in the local paper and discover that the only films on offer are “Reservoir Dogs” and “The Texas Chainsaw Massacre”. What am I going to say to my highly nervous—indeed, squeamish—but much-loved aunts: “You must stick with your democratic decision”? Or do I say, “Now you know what’s on offer, what do you think?”?
Of course, on all these matters, in the end, the elected House must have its way. That is a given, but I would not be surprised, especially in the context of the numbers in the Commons, to see extended exchanges between the two Houses. After all, it was not that long ago that the then Corporate Manslaughter and Corporate Homicide Bill went back and forth between the two Houses seven times. That was an important issue, but it was nothing like as important as the issues now before us. Some argue against any criticism or amendment of this Bill on the grounds that if the Bill were not enacted there would be legal chaos. That is a naive and slightly condescending argument. We all know there need to be mechanisms to move us towards a post-Brexit legal order and, suitably amended, this Bill would provide those mechanisms, but without doing profound damage to the authority of Parliament and its duty to act as a check on the Executive. Of course, there are those who see such criticism or amendment as an attempt to stop Brexit. It is not. It is about what we have after Brexit; it is about parliamentary sovereignty and the long-term constitutional settlement.
Lord Selsdon (Con)
My Lords, I find myself in a very difficult position. I have been in your Lordships’ House for 56 years and I have never found such an impressive audience at this time of the evening. I am therefore wondering why I am here, and what I might be able to do to help. I was asked to say something on the financing of trade as we need to develop it across the world. I was, for quite a while, chairman of the British Exporters Association. Most of my life has been the financing of trade, usually against good orders. As we sit here tonight, with Britain in Europe at the moment, 37% of service exports and 48% of goods exports go from here to the continent of Europe. That is more than I thought, and £380 billion UK imports are from Europe, compared with only £243 billion from the rest of the world. Some 2.9 million EU citizens live in the UK, 1.2 million UK nationals live in the EU and 40% of foreign direct investment comes from the EU.
So what is our duty as Britain in Europe? What can our Government do to help? We know that through the financial institutions and through our export associations, the finance is normally available for all worthwhile projects. We know too that, for the first time in many years, the relationship between the departments of trade and industry and other departments is pretty good. One can pick up the phone, ring and, instead of being passed to someone else, get instant help. What can we do at this time?
We have people worrying about the continent of Europe and what will happen. Yet we have a significant position within all aspects of trade. Money is only a commodity these days—it is a method of communication. This is the first time in my banking years that I find when you pick up the phone and ask if someone might be interested in something, the voice at the other end of the phone jumps down the line and says, “Yes, I would be”. In financing the development of trade and overseas investment, there appears to be no shortage of money. There is no difficulty in currency and, although to some extent in the past, language created problems, it seems that the spread of the English language on the telephone is greater than it is in real life; you get a wonderful response.
I feel confident that we are in a strong position. The questions are: who is in charge and what are we trying to do? I am not sure who is in charge at the moment. This place in the evening, when you have 700 or 800 people, is quite an interesting environment in which to get tired. I do not think the Government or Parliament can do much more to help. If anyone has any ideas, I would like to open up your Lordships’ House for a debate on a particular subject with questions that noble Lords might like to pose. I could certainly arrange for them to be answered. That is probably the best contribution I can make, other than to give you an order for anything for which you would like an order.
Lord Davies of Stamford (Lab)
My Lords, my view is that Brexit is a real and present danger to the prosperity of the country, to future public services, given the likelihood that tax revenues will not be as high as they otherwise would be, to our influence in the world, to the stability of Europe and, not least, to the personal opportunities open to our people now and in future generations. I feel it is my patriotic duty in these circumstances to do anything I can to assist in the avoidance of that calamity, but I recognise that if the worst occurs, we will need something along the lines of this Bill—or hopefully a good deal better—to avoid a legal vacuum.
The Government have been strongly criticised on both sides of the House in this debate, and quite rightly so. I intend to continue the criticism. They have committed four major, and quite unforgivable, errors. The first is to have been less than straight with the British public about the costs of Brexit, particularly its economic costs; that has been the story of the last 36 hours —their disgraceful attempts to prevent the public learning about the impact assessments. The public have had to pay for those impact assessments; they deserve to see them, and directly from their Government, not indirectly by way of leaks. The whole episode has been quite disgraceful.
Over the last few months, the Government have been coping by quoting historic figures on the economy, apparently showing the economy coping well in the face of problems raised by Members of this House about the present and future prospects of the economy. There was a good example of that just a couple of weeks ago when the noble Lord, Lord Callanan, answered a question of mine about people planning to leave the City of London and go elsewhere in the European Union to pursue their careers. That is an issue relating to the future, which he answered by talking about current of employment levels in this country, which is a lagging indicator of the performance of the economy until now. He would not get many marks in an economics exam if he mixed up leading and lagging indicators. I do not know if it was incompetence on the part of the noble Lord; I think it was part of this general campaign by the Government to throw dust in people’s eyes and prevent them realising what is going on.
This neglect of the economy—plus a certain amount of self-deception—has also led the Government to make the very worst call they could in selecting a form of Brexit that will be the most economically damaging to the country, a form in which we are excluded from the single market and from the customs union. I was shocked yesterday when the noble Lord, Lord Callanan—I am sorry that I keep referring to him—blamed the British public for that, saying they had decided it. They decided nothing of the kind. There was nothing on the referendum ballot paper about the single market or the customs union. The single market was very little mentioned in the campaign and was often mentioned on the Brexit side by people such as Daniel Hannan, who were trying to encourage people to vote for Brexit to get a Norway or EEA-type solution. The British public can hardly be blamed for that. I never heard the customs union mentioned in the whole campaign. As for the Irish border issue, the only time I heard that mentioned was when I mentioned it myself at a big public debate at the Mansion House in the City. I completely floored my opponent because he had not even thought of the problem. Such was the extent to which the British public had an opportunity to make a judgment on this. The Government cannot get away with blaming the people for the consequences of their own decisions. Parliament must not allow them to get away with it, and I trust that we will not do so.
The political judgment of the Government has been about as bad as their economic judgment. They started these negotiations with an enormous degree of naivety and over-confidence. Perhaps they really believed you can have your cake and eat it, too. Perhaps they believed, as Mr Gove said, that the day we left all the cards would be in our hands. They have behaved as though they believed those naive things. They thought the big German exporting companies—Siemens, BMW and so forth—would say to the German Government, “You have to make concessions, you have to keep the British Government happy”, and the German Government would say, “Yes of course, we’ll do that”, and go to the Commission. Of course, none of that happened. They very recently thought the continentals would panic, go to the Irish, bully them and say, “We cannot take on your problems, you are only 3 million people and you can’t stand in the way of tens or hundreds of millions of people; you must give up your insistence on the Irish border”. They failed in both cases to understand the concept of solidarity in the European Union. The Eurosceptics in this House have never understood the European idea—not since we joined the European Union—so they were very surprised. They had made a complete miscalculation and were very surprised by the reactions they got.
The worst thing about the Government’s attitude to all this is surely the order of priorities—moral priorities, if you like—reflected in their actions so far in this field. Those values have resulted in a most bizarre situation. We have a lot in this country that we should really be very concerned about. The National Health Service is in crisis. There are people literally dying on trolleys hours after they have been admitted to hospital, without ever being seen by a nurse or a doctor. That is a disgrace for all of us in a civilised society. We have had defence cuts which are, in my view, quite irresponsible, and are of the greatest concern to anybody who has taken any interest in defence at any point, professionally or otherwise. The Government are now planning further defence cuts, we are authoritatively told. They have cut the police, disastrously, so that clearly the police are not capable of responding to threats, particularly in areas such as terrorism, cybercrime and the serious crime of rape, as we have seen in recent sad cases. Against that background, what are the Government doing? They are spending money hiring 5,000 customs officers. Can you imagine going to a patient who has been waiting on a trolley for hours and hours, perhaps in serious pain, and telling them, “I’m sorry there’s no doctor or nurse to look after you, but don’t worry—the Government are hiring customs officers”?
Then there is the ultimate obscenity: the Government’s plans to spend £1 billion building a vast lorry park by the sea at Dover to accommodate lorries for hours and hours on end, a monstrous project that will contribute absolutely nothing, not an iota, to economic output or prosperity of the country or to human happiness, and which will of course detract from both.
We must be pitied in many parts of the world to be in this situation, and I fear that in many parts of the world people may be laughing at us and the mess that we have made of ourselves. It is a situation that none of us can be happy about, and it seems to me absolutely our duty to do everything possible to try to make sure that we get out of this terrible mess as soon as possible.
Lord Russell of Liverpool (CB)
My Lords, to help orient the Minister both socially and geographically, may I explain that I speak as a hereditary oik of the Cross-Bench variety? I wish to make two points very briefly, one on the rather fevered political climate and its effect, good or bad, on this Bill’s passage, and secondly, and perhaps rather more importantly, on the need to protect the rights of children.
First, people largely ignored party politics when they voted in the referendum, as is evidenced by the state of our two largest political parties today, and we should do the same in doing our best to improve this Bill. Undoing 43 years of legal, regulatory and commercial entanglement within the highly compressed post-Article 50 timescale was always going to be difficult, particularly as it was triggered from, effectively, a standing start, as the noble Lord, Lord Bridges, powerfully reminded us. In its passage through another place, frankly—I went and observed some of the proceedings—it was often quite painful. It was overtly political, and sometimes it was needlessly puerile. We can and we must do better in this place, and I appeal to all noble Lords, especially the 30% of our number who in a previous incarnation were in another place, to try hard to leave their perfectly formed or partially formed bad habits behind them. I make one exception: the rather splendid speech of the noble Lord, Lord Patten. With friends like that, the Conservative Party has really no need of any political enemies.
So let us do our job properly as a constitutional Chamber, not as a bickering group of partisan factions. We have seen some very good examples today of noble Lords from all sides of the House demonstrating that this is indeed possible. I thought the noble Baroness the Leader of the Opposition was extremely balanced in what she said, and I thank her for that. I thought the right reverend Prelate the Bishop of Leeds was extremely thoughtful, and reminded us that there is a lot more out in the world that is rather more important than the details of some of the clauses we will be going through. Then there was the noble Lord, Lord Bridges, as well as my noble friends Lord Lisvane and Lord Krebs, who I thought made a very powerful personal statement, our Convenor, my noble and learned friend Lord Hope of Craighead, the noble Lord, Lord Higgins, who skewered the idea of referenda extremely effectively, and the noble Lord, Lord Wilson of Dinton. This is what we need more of. We have also heard one or two contributions which frankly, in my view, we need rather less of.
Before I move on to children, I state my interest on the register as the trustee of the charity Coram. As the noble Baronesses, Lady Massey, Lady Hamwee and Lady Lister, and others have mentioned, the Joint Committee on Human Rights report on this Bill has flagged up major concerns about excluding the European Charter of Fundamental Rights from our domestic law, stating that it will create uncertainty and a lack of clarity. The Government assured Members in another place that their ability to support and safeguard children’s rights will not be affected, but I have a question for the Minister. In the light of the concerns from the Joint Committee on Human Rights, are he and the Government committed to working together to ensure that there is no erosion whatever of children’s rights and entitlements after exit day?
I give notice that some of us will table amendments, particularly to Clause 7, and I hope we can work together to get the best results for children, rather than do so in needless opposition.
Lord Ribeiro (Con)
My Lords, much has already been said by our legal Peers and others on the legalities and technical aspects of this Bill, so I shall focus on just two areas this evening. One is the European working time directive and the other is the Euratom treaty. The European working time directive was introduced to ensure that workers such as truck drivers did not work excessively and fall asleep at the wheel, causing accidents. Introduced in 2004 for doctors in training, it coincided with my period as president of the Royal College of Surgeons, from 2005 to 2008. We published several publications, and there were publications from the speciality associations for trainees in surgery. They noted the negative effects of the directive on the quality and continuity of care given to patients, and on the quality of the training provided for our junior doctors. The impact of the European working time directive on medical graduates in 2002 was surveyed in 2013 and 2014 and reported in the journal of the Royal Society of Medicine. More than 3,000 doctors were surveyed and 64% responded, which is quite high. More than two-thirds of doctors believe that the directive has had a negative effect on the continuity of care and on junior doctors’ training—no change from the surveys that we carried out during my presidency. The majority disagreed that it benefited the NHS but noticed an improvement in doctors’ work-life balance. Surgeons, unsurprisingly, were the least positive about the directive. This was also true for the other craft specialties.
Ten years on and little has changed. Even Norway, to which we often liken ourselves in Brexit terms, adheres to the 48-hour working week but has experienced problems with surgery and believes that a degree of flexibility is required for that speciality. The change from being on call while residents in a hospital to shift-working has not reduced fatigue or made for happier doctors. Even the BMA, a champion of the European working time directive, accepts that fatigue is still a problem. Add to this the loss of the firm structure, with three junior doctors working together in a team providing moral support to each other, whereas we now have one doctor working in isolation, often for 13 hours at a stretch at night, for four nights in a row with very little in the way of support and nowhere to lie down or have a kip because he is there to work. That is what is happening. We have moved from an on-call situation, where people could rest and then carry on working, to one where they are expected to work all the time. It is hardly surprising that it has had an effect on junior doctor morale. My plea to the Minister is that we do not adopt the EWTD in its present form but seek to ensure flexibility for those who practise craft specialties, who have to acquire not only knowledge but demonstrate the ability to carry out surgical and other operative procedures.
What are the implications of the UK leaving the Euratom treaty? The EU Home Affairs Committee on which I sit took evidence from medical specialists on the risks of leaving Euratom. I am mindful that 80% of the radioisotopes we use for diagnostic and treatment purposes are imported from outside the UK, the majority from the EU, but also from Australia, South Africa and the United States. These materials have a half-life and decay over time. Their transportation is therefore time critical. Euratom is a major contributor to the Horizon 2020 project and the UK benefits by some £32 million for nuclear research, much of which is utilised by our universities. I have concerns for our research industry if the UK leaves Euratom. I therefore ask my noble friend the Minister: what plans do the Government have to set a timetable for replacing the provisions of the Euratom treaty with alternative arrangements? What assurances can the Government provide that our access to radioisotopes will not be compromised by our withdrawal from the EU?
Lord Morris of Handsworth (Lab)
My Lords, this is a unique debate, the first of its kind, certainly in my experience. However, we are not debating principles. The people have spoken and now we must respond. Nor are we debating timing, methodology or process because these factors, important as they are, have already been determined and, indeed, concluded in another place. Therefore, this House is primarily concerned with the execution and consequences of the decision taken by the British people to leave the European Union. It is now the duty of this House in this debate, as in the other place, to respect and deliver the will of the people.
I am very much aware that the House has had a number of debates on the decision to leave the European Union and the implication has been well examined, so I will not dwell on the particulars. Nevertheless, there is one area where the outcome amounts to success or, indeed, failure: that is the free movement of people. Therefore, my question to the Minister is: where in the thousands of pages which reflect the debate in the other place are the contingencies and the planning for exit day?
We already know that there is currently a steady stream of European returnees who feel unwanted living in a hostile environment in the UK. This is not specific to one sector or profession, north or south; already some sectors are preparing for the worst. The horticultural industry is seeking workers to replace those planning to leave. The NHS is planning for the worst as the European NHS workers start to go home, and this is also true in agriculture, construction and social care, among other sectors. I trust for all our sakes that the planning process to fill the gap is well advanced. When the Minister responds to the debate, will he tell the House where is the contingency plan to sustain economic stability? When will it be developed and implemented?
By the end of the debate I hope that we will be clearer about many of the issues which worry many of our fellow citizens whose lives will be affected whether they voted to leave or to stay. The way people voted does not devalue questions about, for example, animal welfare, food additives or joining or leaving the single market. The debate was much more parochial and was influenced by populism in respect of the yes or no vote. I have a great many questions, far too many to consider in these few minutes. However, what guarantees will there be as regards maintaining and enhancing workers’ rights so that they do not fall behind the rights of workers across the EU? An amendment in the other place required that after Brexit any change to employment rights and protections for consumers and the environment would require primary legislation and proper scrutiny by Parliament. It was narrowly defeated by the Government.
Regulations covered by the European Social Charter, including drivers’ hours and the working time directive protected not only workers but the health and safety of us all. Why would the Government reject proper scrutiny? Similarly, the Government have argued that we will no longer enjoy, or be protected by, the jurisdiction of the European Court of Justice. What will replace the jurisdiction of the ECJ? The proposals set out in the European Union (Withdrawal) Bill will require UK courts to interpret legislation passed before Brexit in line with EU law and European Court of Justice judgments, but there are uncertainties in relation to the way this will be interpreted in future. Will the Minister consider that point and calm our worries?
In many rural areas, farmers had difficulty last year in finding people to pick their fruit and vegetables. Even workers who had regularly travelled from Europe for this seasonal work chose instead to stay in Europe, where the environment was more hospitable. Many employers have difficulty finding local people with the willingness and skills to do certain work, including, as I have indicated, the NHS, care services and hospitality. Am I alone in feeling there is too relaxed an attitude to this problem, not just in our Government but in many communities and sectors of our economy?
Finally there is the problem of the continuing use of UK and EU citizens as bargaining chips. It is affecting every industry and shattering the lives of thousands. The application process, which we are told will settle this problem, clearly will only make matters worse. Migration experts warn that hundreds of thousands of EU nationals living in Britain could struggle to secure Home Office permission to stay in the UK after Brexit. Already, applicants for citizenship are being turned away by the Home Office—
Lord Young of Cookham (Con)
Noble Lords have been very good about observing the advisory limit of six minutes. I urge the noble Lord to pay similar respect to the time limit.
Lord Morris of Handsworth
I accept the noble Lord’s comments and will wind up.
In view of the points already made, British workers will not return to the status of poor relations. They will defend the working time directive, the drivers’ hours regulation and the social charter. As with all major challenges, there is no turning back. As a nation, we have made our bed, and there we must lie.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I share the views expressed by many other noble Lords that this is at root an enabling Bill—albeit one with serious and complex constitutional and societal implications, as the noble Lord, Lord Lisvane, reminded us in his excellent speech a few minutes ago. However, its overarching purpose is to give effect to the wish of the British people to leave the European Union as expressed in the referendum, and it therefore has my support. I come to this debate as what can best be described as a “mild Brexiteer”. I am afraid that I cannot support the more extravagant claims of triumph or disaster espoused by many who have more convinced and settled views. Indeed, I wonder about what lies ahead with artificial intelligence and robotics and their impact on this country and our whole way of life. That impact may be so great that the effect of Brexit may pale by comparison.
My approach to the “European project”, as I understand people like to call it, has changed over the years, from an initial great enthusiasm at the time of this country’s entry into what was then called the European Economic Community. These views were based on personal experiences, and mine were based on the fact that I was born during the war. By the time I was born my father was already in khaki, on a troop-ship bound for the Far East. He returned unharmed, and I first met him when I was about four and a half years old. I am sure that my mother was concerned and worried—although she kept this from me—and I had friends whose fathers had been killed or wounded. So I need no lectures from noble Lords about the death and destruction that Europe has wrought upon itself twice in the last century. However, I have a growing sense that the project has lost touch with the views, hopes, fears and aspirations of a great many of those it sought to represent.
The Explanatory Notes, on page 6, summarise the four main functions of the Bill. I will focus my remarks on the third of these: the power to make secondary legislation—delegated powers. That is not because the other functions are not extremely important and do not require intensive scrutiny—they certainly do, as many speakers referred to earlier—but because to me, the sharp end is where mission creep may occur, and where the temptation of a power grab may prove irresistible. I do so against the background of the experience I gained as a member for some years of your Lordships’ Secondary Legislation Scrutiny Committee, under the able chairmanship of my noble friend Lord Trefgarne.
Focusing on Clause 7 and its associated sections, one has to recognise on the one hand the complexity and magnitude of the task that will be undertaken, and on the other the extraordinarily wide powers that are sought. So there is a balance to be struck, which was very well illuminated in the speech of my noble friend Lord Bridges of Headley. In her excellent opening speech earlier today, my noble friend the Leader of the House explained some of the steps in the development of the Government’s thinking as to how we will tackle the challenge of this balance. We are to have a scrutiny committee—although its membership has yet to be determined. I am also not yet clear whether it will address issues surrounding tertiary as well as secondary legislation—and if it does not, what body will? Further, is its purpose solely to decide which legislative route a particular regulation will follow—negative, affirmative or whatever—or will it undertake the scrutiny as well?
As to the make-up of the committee, I have no doubt from my time as a member of my noble friend Lord Trefgarne’s committee that the quality of examination we were able to give a particular regulation was greatly enhanced by the presence on the committee of people with direct experience of that particular policy area. For example, knowing something about trade and industry I could contribute on that, but when dealing with social security I needed other members of the committee to bring their particular expertise to bear. So I hope that, as the Government’s thinking develops, consideration will be given to establishing a series of scrutiny or standing committees. One alone will surely not be able to do a serious job on the volume of legislation that lies ahead of us. Each of these would focus on defined policy areas and would contain some members with relevant experience of those subjects.
One of the major weaknesses of the whole procedure for scrutinising secondary legislation is that such legislation is unamendable. Your Lordships’ House is therefore always faced with what can best be described as a nuclear option—and, given that fact, has unsurprisingly proved reluctant to press the button. We face exceptional circumstances in this Bill. Is there not a case for establishing a special one-off procedure to deal with them? I note that in paragraph 57 of its report last September, and indeed in the report it published yesterday, the Constitution Committee of your Lordships’ House hints at the desirability of such a development.
Finally, in order to clarify what has been proposed and focus our discussions appropriately in Committee, would it be possible to produce some sort of flow chart showing how, when and by whom decisions are made, as well as the checks and balances built into the procedure, and fit that in to a parliamentary timetable? Maybe such a chart exists—but I have not seen it and it would be most helpful to have one before Committee.
To conclude, this important Bill has my support, but we have to work to do to examine it in detail. I hope that filibusterers on either side of the argument will stay at home—this House’s reputation is at stake and this Bill is too important for the playing of games.
Lord Hoyle (Lab)
My Lords, as my noble friend Lord Morris of Handsworth said, this debate is not about whether we leave. That decision has already been taken. It is a decision of which I personally approve, but it is right that there is a discussion and that questions are asked as to where we go from here. I am also very pleased—the media has got it wrong—that there has been no suggestion from any noble Lord that the House could overturn a democratic decision of the British people.
There are two sides to this. We very often concentrate, as I have said in previous speeches, on the jobs that are created in this country by Europe. I want to look also at the benefits that we afford Europe, because those are quite substantial. Europe has a £40 billion to £80 billion trade surplus with us, so we are a very important market. Indeed, Germany alone has a trade surplus of £25 billion to £26 billion, and a fifth of German car exports come to this country. The point is that it is in Europe’s interests as well as ours to reach an agreement on these matters. If we look at it from that point of view we will see that we are just as important to Europe as it is to us, and that is the basis on which to conduct negotiations.
I also want to emphasise that workers’ rights need to be enshrined or looked at again. It is very important, as has been mentioned several times, that they are safeguarded. The other thing I want to discuss is the position of Gibraltar. It is only due to the intervention of Europe that Gibraltar’s frontiers are kept open, and consequently it is extremely concerned about what may happen. I hope that the Minister can reassure us that Gibraltar’s position is being looked at and discussed. The Chief Minister of Gibraltar expressed concern the other day in relation to this matter and it is very important that we take Gibraltar along with us.
I have been very impressed with the nature of the debate. Everyone who has spoken has tried to be constructive in stating their position. This is one of the most important decisions this country has to make. Going forward, I want us to have a debate with Europe on equal terms where we get together and make progress. I see no reason why we cannot do that. A lot of good could come from going forward in a harmonious fashion rather than being at loggerheads with each other—there is no need for that.
I have really enjoyed listening to what noble Lords have had to say today. This has been a very important debate and I think that, having listened to all the points of view, we will all go away looking at the matter in a different way. I look forward to moving on to the next stage.
Lord Norton of Louth (Con)
My Lords, it is crucial that we do not make the mistake that we made during the passage of the European Union Referendum Bill—that is, spend time debating the merits or otherwise of withdrawing from the European Union at the expense of focusing on the specifics of the Bill. We took our eye off the ball in dealing with that Bill, and we are in no position to complain about the rules and process of the 2016 referendum.
We need to be clear as to purpose. I endorse what the noble and learned Lord, Lord Hope of Craighead, said this afternoon. We cease to be a member of the European Union on 29 March next year whether or not we pass this measure. This Bill is necessary, although not sufficient. I have no problem with the end; we need to make sure that the means are there to ensure that it delivers what it is designed to do. As it stands, it goes much of the way to achieving it—some provisions are to be welcomed—but more needs to be done.
I serve on the Constitution Committee of your Lordships’ House. As the noble Baroness, Lady Taylor of Bolton, has already explained, our report, to which several noble Lords have already referred, identifies the key problems with the Bill and what can be done—indeed, what needs to be done—to render it constitutionally acceptable.
The Bill creates confusion for the courts and indeed is constitutionally flawed in the breadth given to the novel category of “retained EU law”. The category includes primary legislation that, by virtue of inclusion, becomes subject to the power of amendment in Clause 7. Even if primary legislation is excluded, the powers conferred by Clause 7 privilege Ministers to an unacceptable degree.
The power to make changes as Ministers deem “appropriate” is subjective and inappropriate. It is also inappropriate for the Henry VIII provisions in the Bill to be exercisable by the negative resolution procedure. The limited set of circumstances for which affirmative resolutions are required is too narrowly drawn. The power conferred on Ministers under Clause 17 has, in the context of the Bill, the capacity for broader application than is the case with other measures and, as we note in our report, there are minimal restrictions on the use of that power.
The “supremacy principle” that the Bill seeks to retain is imprecise in terms of scope. As the committee’s report stresses, it constitutes a fundamental flaw at the heart of the Bill and is alien to the UK constitutional system. In the words of the report:
“It has meaning and application only in relation to EU law, and to seek to graft that EU law principle onto a legislative scheme whose explicit purpose is to remove EU law from the UK legal system and replace it with domestic law risks confusion and places legal certainty in jeopardy. It does not make sense, either as a matter of language or as a matter of constitutional principle”.
What, then, do we propose? Retained direct EU law should be designated as domestic primary legislation. That would remove the need for a supremacy principle. We consider that there is merit in drawing on recent amendments made by the Government to the Sanctions and Anti-Money Laundering Bill to ensure that Ministers demonstrate that there are “good reasons” for any change and show that the use of the power is a “reasonable course of action”. We also recommend that the Explanatory Memorandum should include confirmation by the Minister that regulations do no more than make technical changes to retained EU law in order for it to work following our departure from the EU and that no policy decisions are being made. The consequential provisions power in Clause 17 should be removed.
We make other proposals, not least in relation to devolution. In essence, the Bill needs to be amended to strengthen the position of Parliament, to provide certainty for the courts and to meet the concerns of the devolved Administrations. We simply cannot afford to get this wrong. Those who have argued against Brexit today are not necessarily doing their cause or this House any favours. They are diverting us from our core task—the task that alone now falls to us: to scrutinise thoroughly and forensically the provisions of this Bill. We must not allow ourselves to be diverted.
I look forward to my noble friend Lord Callanan indicating willingness on the part of the Government to move forward on the amendments proposed in the report of the Constitution Committee. This time, we must not take our eye off the ball.
Lord Morris of Aberavon (Lab)
My Lords, it is always a pleasure to follow the noble Lord, Lord Norton, whose views on the law are treated with the utmost respect in this House. I will follow him in one respect: on the legal consequences of Clause 11, which is important to the devolved Governments in Scotland and Wales.
I will confine my remarks to that particular clause, which I believe is sufficiently contentious for me to make a fundamental objection to it on Second Reading. The Scottish Secretary made a commitment on behalf of the Government that it would be amended by the Report stage in the Commons. The Government have failed to do so. It would have been of enormous value to this House if that promise had been kept. Is it that Whitehall cannot get round to facing the fact that more than 20 years after the event, there are other legally constituted Governments in other parts of the United Kingdom in addition to Westminster?
Mr Stephen Crabb, the former Welsh Secretary—he understands devolution—let the cat out of the bag when it was reported that he addressed the Conservative Party conference last year and said:
“We still have to get the Cabinet Secretary to put pressure on departmental permanent secretaries to take devolution seriously”.
I want to say in passing that with devolution, surprisingly, the involvement of Wales in decision-making in Brussels seems to have been less, not more. When I was Welsh Secretary, I frequently attended the Agricultural Council of Ministers when Welsh agriculture was discussed. On one occasion, at the Prime Minister’s request, I chaired the Employment and Social Affairs Committee during our presidency. The big question is whether Clause 11 undermines the principle and practice of devolution now accepted after years of battling.
The Government have been accused of a Westminster power grab in the Bill, at the expense of the devolved Administrations. Such colourful language may not be justified, but the question remains of how the present proposals were put before Parliament without meaningful discussions first taking place with both devolved Administrations. The explanation may lie with the intermittent and sporadic meetings of the Joint Ministerial Committee, where proposals could have been hammered out and agreed. If I may spell out what I understand to be the legal position, as it stands, there would be a new restriction on the legislative and executive competence of the devolved institutions—a new set of shackles whereby they cannot change retained EU law. So, instead of the devolution settlement, where there is equality between the devolved institutions and the UK Government in terms of freedom to set policy in devolved policy areas within the EU framework, there would exist a situation where the UK Government can unilaterally lock down the devolved institutions’ opportunities to shape such policies.
I believe that the Bill, as it stands, fundamentally redraws the architecture of devolution—the architecture referred to by the noble and learned Lord, Lord Wallace of Tankerness. In my view, and that of the Welsh Government, the principle of effective equality between the UK Government and the devolved institutions in areas that are clearly devolved needs to be retained in the post-Brexit world.
Astonishingly, the Bill would give Ministers of the Crown powers to make rectifications of retained law in areas of devolved competence without consultation with the devolved institutions to reach over into areas of devolved competence. The granting of powers to a Westminster Minister to change an Act of a devolved institution without any input from those legislatures is totally unacceptable.
I now turn to the issue of legislative consent, which of course is a political convention only, as the Miller case commented. The Government have come exceedingly reluctantly to the need for legislative consent. It has had to be dragged out of them. On 21 June, the Prime Minister stated:
“There is a possibility that a legislative consent motion may be required by the Scottish Parliament”.—[Official Report, Commons, 21/6/17; col. 62.]
The Leader of the Commons the following day kicked it into touch. Confirmation had to be dragged out of the Government and I am grateful to the noble Lord, Lord Bourne, who said that we would be seeking consent from the three devolved bodies. The issue is of such serious constitutional importance that the two First Ministers of Scotland and Wales have sent a joint letter to the Government stating that neither the Scottish Parliament nor the Welsh Assembly would give legislative consent that the Government acknowledge is needed to the Bill in its present form. That letter, which the two Governments have sent, is very important. Hence, there is an urgency for getting back to the table for meaningful discussions. As I have said on previous occasions, once devolution is given, it cannot be taken back.
Lord Carrington of Fulham (Con)
My Lords, I am delighted to welcome the Bill. After the debate that we have had today and the many interventions, I may be among a small minority in doing that. The Bill is not without its problems, as we have just heard from the noble and learned Lord, Lord Morris, but it is one that we can all welcome because it brings a degree of confidence in terms of what is happening in our leaving of the European Union. Business needs the certainty that the Bill starts to bring to where we will end up after the end of the negotiations.
We can all agree that, in leaving the EU, we wish to do so with as little disruption as possible. Perhaps the Bill is an important part of that, although a fairly small part. It is clear that both the other 27 members of the EU and ourselves will prosper from a mutually beneficial exit agreement. I hope that the Bill will strengthen our hand in our negotiations in persuading the other 27 that there is no point in a punishment-beating type of exit, and bring both sides to a grown-up recognition that it is in everyone’s interests for trade to carry on very much as it does now. There is one area where that is more of a problem than for physical exports, and that is for services—particularly financial services and the related support services such as the legal and accountancy professions. We need to be clear on the way forward for these important industries.
It matters very little whether financial services benefit from what is called passporting, which is likely to end on our departure from the EU, or from mutual recognition of the EU’s and UK’s regulatory regimes—what is sometimes, and rather controversially, called regulatory equivalence. They both give reciprocal market access, enabling EU firms to continue trading services in the UK and UK firms to continue trading in the EU. Both passporting and mutual recognition come to the same thing in broad terms and are both to the advantage of the providers of the services and to the client.
Under either system, a bank operating out of London providing services to a French client, say, will benefit from not having to create artificial structures such as setting up a subsidiary in Paris with staff and capital to channel the French client’s financial and trading needs through to London or New York. Equally, the French client will benefit from reduced costs in meeting their banking needs. After all someone, inevitably the client, will pay for the additional costs of setting up artificial structures. The client will also benefit from the increased competition, and therefore lower costs, of having the maximum number of banks prepared to offer global services in France.
The real cost of erecting artificial barriers to the trade in services will be met by an additional group of people. It is not just the client at the bank who will lose out; it will also be damaging to the employees of the bank. If banks are required to open subsidiaries in Paris, say, which they would not otherwise have done, the staff who would be transferred there would predominantly be French staff currently working in London and servicing French clients. There is a good reason we have so many EU nationals working in financial services in London. Part is due to lifestyle and part is due to our still-benign personal tax regime, but it is principally because, if you work in financial services and are ambitious, there are only two cities in which to build your career: one is New York and the other is London. I know very few EU nationals working in financial services in London who would see it as a good career move to return to their home countries.
The need for easy access to the financial markets of the other 27 countries after we leave varies greatly from one financial institution to another. Some, such as insurance companies and brokers, have always operated from subsidiaries and will continue to. Many banks already have subsidiaries, which enable them to meet any regulatory requirements with, perhaps, a little tweaking of their capital structures. Asset managers tend to operate offshore in any case and sell their products on the basis of their performance. While the financial service industry will continue to prosper regardless of any changes to our relationship with the EU, there are many things we can do to make that more certain and a lot cheaper. I hope that, when we come to consider this Bill in detail, we will be able to explore ways to make the transition for the financial services industry seamless.
Lord Roberts of Llandudno (LD)
My Lords, first, can I say how much we welcome the words of the noble and learned Lord, Lord Morris of Aberavon? I am sure that, in Wales, people will have been listening very carefully to what he said. My emphasis will again be on Wales and in a different context.
We need to confirm Brexit or otherwise, and we do that by voting. We voted in the referendum. People will say that we had one vote—that the people voted and made their voices heard—but it is unusual for people to rely on just one referendum. In Wales, we had a referendum on Welsh devolution way back in 1979, when 20% of the people of Wales voted for devolution. Some years later, just over 50% voted for it, but people had changed substantially in those years. People are allowed to change their minds. If they do not, they are like stagnant water that is not fit to drink.
Let us look at other things that have happened in Wales. In 1961, we had the first referendum to open pubs on Sundays. As a Methodist minister I was not in favour and the people were not in favour. Nine local authorities voted to stay dry. Eight local authorities voted to open, so it was just over 50%. The next election on this came seven years later, and another two or three voted to open. We came to the last vote, which was the sixth referendum. This was in 1996 and then the whole of Wales voted to open.
People change their minds, very substantially. People are allowed to change their minds. Of course they are. What is this House but a place where we change what has been decided by the House of Commons? If we do not change our minds then it is hardly worth our sitting here. Of course, today we do not penalise people because they change their minds. In the Middle Ages if someone changed from one faith to another, that was the end of that person. Some areas of the world today have that total opposition to people changing their minds. Let us not be embarrassed at all. Let the people change their minds. Let them think. If we do not want them to think, we are doing something very dangerous. So I say, yes, we need another decision. The people voted in a referendum, 48:52, to come out of the European Union. There is no threshold there, only a majority, but it is said, “People have voted”. Is it not reputable for us as a House to say, yes, we have confidence that, having explained the details, the people will be able to take a rational decision—a rational decision very necessary at this time?
How will coming out of Europe affect us? We are in a world where we have North Korea, a President of the United States whom I do not understand most of the time, and Putin in Russia. These are dangerous people and if we opt out of a stable relationship with a Europe that has the confidence of the members who belong to it, are we not really saying that we as a UK have no confidence; that we are content to be a backwater? We are not a backwater. Over the centuries we have had a distinctive position. Now we come out of Europe, we weaken Europe and we weaken ourselves.
Therefore I suggest briefly: do not be afraid of changing your mind or having a second vote. That first vote was only one vote. Also I want to say, and others have said it this evening too, that young people aged 16 and over should be allowed a vote in any referendum. It is their future. I and most noble Lords have done our best in the past but these youngsters have the future and they have to shape that future. Wales has already decided. Today, in the Assembly in Cardiff they are going to vote to give youngsters the vote at 16. Do not let England be far behind Wales and Scotland.
Lord Framlingham (Con)
My Lords, it is a pleasure to follow the noble Lord, Lord Roberts, although I fear I am going to disagree with him on pretty well every point he raised.
Although I am very cross about what has happened since we voted to leave the EU, I speak today more in sorrow than in anger. I am deeply saddened that not only has the decision of the British people been betrayed but that a golden opportunity to forge a new course for our country has been deliberately spoiled, muddled and fudged. Although it may be obvious from my remarks, I am not going to tell the House how I voted in the referendum. Once that was over, it should not have mattered. Every effort of everyone should have been devoted to getting on with the task of making a success of our new role in the world. What has dismayed and frustrated me more than anything is the number of people who never wanted us to leave the EU and who, under the pretence of wanting to improve the legislation, have sought to sabotage it and thwart the will of the people. They should have been honest from the start.
Now, at least, some of them are coming out into the open. Many, however, are still being duplicitous—playing a double game. This debate is not about whether we leave but about how we leave: it is not whether, it is how. I can do no better in setting out the context of this debate than to quote from the totally reliable, completely unbiased House of Lords Library briefing for this debate. It says that the Bill will provide for the repeal of the European Communities Act 1972 and convert EU law at the moment of the UK’s withdrawal from the EU into domestic law, as a category of law called “retained EU law”. It also provides for retained EU law to be modified to correct deficiencies that may have arisen as a result of withdrawal. It is as simple as that. In the simplest terms, we are transferring all EU law into our own, and giving the Government the power to tidy up where necessary, subject to appropriate scrutiny. What could be more straightforward?
All great issues are essentially very simple. We make them complicated when we do not want to face them. Those who do not want us to leave the EU are deliberately muddying the water, complicating arguments and doing everything they can to prevent us leaving. They have already done great damage to our programme for leaving, they have given succour to our opponents and now they are in danger of urging your Lordships’ House, careless of its reputation, to further impede progress.
Even at this late stage, I say again, in sadness rather than anger, that I sincerely hope that they have a change of heart, and that if they feel they cannot help they will at least refrain from hindering. This should be a national team effort to get the best result for our country. It is very hard to win if half the team want you to lose and are working to that end.
The impression is sometimes given that the British people are half-hearted about leaving—are changing their minds. Nothing could be further from the truth. The vast majority of the people just want us to get on with it and are tired of all the infighting and backbiting. What should have been one of the most exciting events in our history has become a total turn-off for so many people.
Finally, I hope that we can stop talking ourselves down, pass this Bill—perhaps with some sensible modifications—and get on, with the help of our friends and allies throughout the world, including the Commonwealth, with seizing the opportunities that our new-found freedom will present.
Lord Triesman (Lab)
My Lords, despite what has just been said, it was inevitable that this Bill would arrive here with such obvious defects. Because of the ideological drive to leave at any cost and a Prime Minister who is obviously unable to contain the excesses of her Eurosceptic colleagues, we now have no declared detailed objectives other than that we do not want a fight among them. We have a Bill which is constitutionally deficient, and a Constitution Committee report, introduced by my noble friend Lady Taylor, that is clear and precise, and justifiably tough.
The Bill is deficient on the constitutional issues of granting Ministers untrammelled powers that sideline Parliament, deficient in the neglect of devolved interests and deficient on the human rights implications—and it is all tied to a timetable that is almost certainly incapable of being accomplished. The Bill will need significant amendment if it is to be made simpler and clarified, and it had better be accurate. I thank my noble friend Lady Taylor and also the noble Lord, Lord Norton, for his clarity on this point.
I cannot square the difficulty posed by the problems outlined in the debate with the complacency of Ministers in saying that they have all the aspects covered. This House will expect and welcome a positive attitude to amendments aimed at improving the Bill. Ministers ask us to trust in a bargaining process in Europe where it is plain that the two sides are not even on the same page. These are the same Ministers who will ask us to allow them Henry VIII powers at a later stage, and it is the same Ministers who conducted the referendum campaign on the basis of what I can describe only as deliberate deceit.
I complained about the overstatements on the remain side, unashamedly, and I say to your Lordships that the straightforward lies on the other side have brought our politics to a miserable low, as the right reverend Prelate the Bishop of Leeds said earlier today. We have surrendered our largest constitutional issue in modern times to hucksters and snake oil salesmen. To take these steps on the basis of a referendum conducted in that way will, I suspect, be seen historically as a form of certifiable insanity—a malady comprising crude populism and a sense of profound fantasy.
I do not really want to focus on the economic prospects post Brexit, other than to agree with my noble friend Lord Mandelson, who emphasised a possible route through the miasma: by staying in the single market and customs union while leaving the EU. It is sub-optimal but it is at least an intelligible route. I remind the House that my noble friend was also a former Northern Ireland Secretary and, like the noble Lord, Lord Patten, has grasped the profound danger of dismantling the customs union.
I mean to focus on the subject of defence, if I may, and the alliances which keep our country safe. It is fundamental; if Governments do nothing else they must do this. When we leave the EU, I have little doubt that our erstwhile partners will rate our exceptional forces very highly. They will know that they are capable and do not shrink from tasks that they are set. Even with our capacity sharply reduced by government cuts, our partners will no doubt welcome our contribution to military activity. But we will not be at the meetings or councils where the strategic decisions are discussed and decided. We will be asked to contribute without having helped to decide the objectives. We may try to find ways to take part in discussions—and we should—but, as the noble Lord, Lord Hague, told the European Union External Affairs Sub-Committee, we will have no rights in those forums.
I know with certainty that the United Kingdom will not commit its forces if it cannot share in shaping their objectives. That would be an absurd position for any state to take. When I am told that NATO will fill the gaps—I am completely committed to that alliance—I am not confident. American commitment is at best half-hearted. It is not only what President Trump says, which is bad enough, but the septic pool of populism from which his policies have emerged and which will greatly outlast him. The United States is more isolationist and nationalistic than for a long time, and there is small reason to feel that we have compensating alliances and doctrines. Indeed, the things he has said suggest to me that the underpinning values of NATO are themselves at risk.
At the level of military leadership, we seem ready to give up the positions we have traditionally held, including Deputy Supreme Allied Commander Europe, which was ably filled for many years by General Sir Adrian Bradshaw. My noble friend Lord Robertson, the former Secretary-General of NATO, has asked how a non-EU country can hold that position. It is a good question. We have elected to be marginal and, inevitably, weaker. I hope that the deepening relationship with France and some other countries may partly compensate, but our decline seems obvious and unacceptable. We have not thought it through.
Finally, in starting this process David Cameron turned our country inward. I doubt that I will be reconciled to the noble Lord, Lord Framlingham, for example, or to any other zealots for leave, because they want a very different country from the one that I want—and I doubt that they will ever be reconciled to views such as mine. In short, our differences may be resolved if some middle way is found but it is entirely possible that they will never be resolved, at least in a generation. The right reverend Prelate the Bishop of Leeds put this eloquently today. The ugliness of the debate, the name calling and the lies have all demeaned the United Kingdom. I am afraid that I see a country with deeper xenophobia and more unashamed hate crime than I have ever seen in my lifetime, and with a view of people from other countries which should shame us—and it is getting worse.
Two generations ago, two ladies in my family left Paris, where my family had lived for generations. That was in 1932. Their letters showed that they thought that the French would never resist the Germans when they inevitably advanced on France and that French anti-Semitism would find a terrifying ally. Other members of the family thought that they were mad. Paris? Amazing city. What could possibly go wrong? Well, they left in 1933, and the two of them—and two others who spent the war hiding in Paris’s sewers—survived. The rest of the family went to the extermination camps. For the first time in my life, I know a number of people who are asking the question: when the economy goes pear-shaped and the bogus promises are seen to be the frauds that they have always been, what will happen then, and who will be blamed? How will we avoid repeating some of the mistakes of European history that occur in these circumstances? Their bet will be that the same people historically will be blamed in Europe. Like the Paris relatives, sadly they are beginning to make their plans to leave when it becomes sensible, and in advance of a catastrophe. They are not the familiar lot who plan to leave because a tax increase is rumoured, and do not tell them it cannot happen to them, because it has happened—in our lifetimes and to our families.
If there are serious solutions to taking on crimes and attitudes of prejudice, let us see them, not just hear words about them. Nothing about this outcome is inevitable. But there is a requirement for confidence that people take it seriously and are prepared to confront it and deal with it. If they are not, I fear that the consequences will be as I have rehearsed.
The noble Lord, Lord Newby, in a fine speech at the beginning of these proceedings, said that it was not a reform Bill but a dreadfully incoherent transfer Bill. I remind noble Lords that the football transfer window closes at 11 pm tomorrow—about the same time as we will close. Let us hope that Ministers can tell us how Team UK can answer the problems set out in this debate rather better than the authorities in football clubs. No bland assurances—
Baroness D'Souza (CB)
My Lords, clearly there are many hundreds of occasions, set out in the Bill, when delegated legislation is, and should be, acceptable—for example, to remove rights that become redundant after Brexit, such as the right to participate in European elections. Furthermore, the Government face a herculean task in transposing EU law into UK domestic law, and the use of delegated legislation serves the interests of expediency and is not necessarily malign in intent.
That said, the mantra that accompanies the Bill is that it is an enabling mechanism, not a decision-making one. The purpose, we are told, is practical and not policy-oriented. But here I have to disagree with my noble and learned friend Lord Brown of Eaton-under-Heywood and agree rather more closely with the noble Baroness, Lady Lister of Burtersett, in the expression of her concerns. We are told that the Government have excluded the European Charter of Fundamental Rights from the Bill. This exclusion conflicts with the general rule of maintaining the status quo and represents a weakening of human rights protection for UK citizens. Furthermore, it represents a major policy change, something the Government explicitly make clear they do not wish to do by avowing that,
“the same rules and laws will apply after exit as on the day before”.
What does the charter add to the armoury of human rights protection enjoyed currently by UK citizens? The charter is at present part of our domestic law but will not be so after Brexit. It gives UK courts the right to strike down any legislation that infringes charter rights as set out in the general principles of EU law. As such, it is an important tool, affecting rights to education, bioethics, academic freedom, conscientious objection, a fair hearing and an effective remedy, among other rights. The charter also covers digital and asylum rights and pension rights for LGBT people, and it safeguards maternity rights.
The charter has been used in recent years to challenge indiscriminate bulk collection of personal data, and/or by those employed by foreign London-based embassies to ensure fair job treatment and to protect privacy from government intrusion. Crucially, it has been used to ensure that the Government cannot make decisions balancing individual rights and national security in secret. The key feature of the Bill is that it removes the right of challenge in the UK courts for breach of the general principles of EU law. There is no counterpart legislation in UK law to deal with these challenges. So while we are busy transposing EU law into British law, we will wholly bypass the European Charter of Fundamental Rights and it is therefore legitimate to question why.
The Government argue that there is no need for the charter since “all” the rights contained within it are already covered by other legislation including, for example, the UK commitment to the European Convention on Human Rights and the Human Rights Act 1998. However, I remind noble Lords that the Government have also, at other times, expressed the contrary view that the charter adds an extra layer of rights domestically, which is perhaps something they now consider undesirable. While it is the case that similar charter rights are covered in the ECHR and domestic law, there are, as already mentioned, very important omissions.
The Government assert that while every other EU law will be retained, they single out the charter for exclusion, and we are therefore justified in asking them to demonstrate how, where and when there will be legislation to protect the full panoply of rights. It is interesting to note that the opt-out of the charter in the Bill is in marked contrast to the specific safeguards granted, for example, for the use of delegated legislation in relation to taxation and to amendments to the Human Rights Act.
On Report in the other place, the Secretary of State said,
“it is true that after exit it will not be possible for an individual to bring a free-standing claim or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law”.—[Official Report, Commons, 11/9/17; col. 585.]
It is difficult not to see this as anything but a pretty major policy change. If the Government wish to revise their human rights protection policies, which they have every right to do, perhaps the withdrawal Bill is not the best place to do it. Such major policy changes should come before both Houses of Parliament in the normal way and be open to detailed scrutiny and amendment. This is a matter of great importance and not one to be roughly pushed aside in the context of the withdrawal Bill.
Finally, the law has to be clear. People must know their rights and, most especially, when and how they might be threatened and what redress is open to them. As was said in the other place:
“The whole point of the charter was to gather all the rights and protections that existed … in other places and put them into one document”.—[Official Report, Commons, 17/1/18; col. 1006.]
Now they are to be once again scattered, weakened and made less accessible. We should retain the charter within the Bill, together with a commitment that Government will not use their delegated powers to weaken substantive human rights and equalities protections by losing the mechanism to enforce those that we currently enjoy from Europe.
Lord Suri (Con)
My Lords, I was a remainer and now I am in favour of Brexit. This is not due to a fundamental shift in my economic thinking. I still hold many of my original opinions, and I think our economy will take a hit with Brexit, although the predictions made before the vote to leave were quite ridiculous and damaged the integrity of many institutions. The reason I have changed my mind is simple. I am a democrat, the people voted and we must, in this and the other place, execute that vote.
Although there was no direct outline that people voted for, we can reasonably say that two things are true. The first is that voters want us to have the power to make our own trade deals. The second is that voters want control of our borders. The second point is far more important, as it has been a running sore of our body politic for at least a decade. To end freedom of movement and regain control, we must leave the single market. This is not a choice that the electorate will accept a fudge on. Nothing less than full control of our borders will do.
The EU will not make a special deal on migration for us, as the shadow Chancellor and some Labour Front-Benchers insist. Michel Barnier, Jean-Claude Juncker, Merkel, Macron and Tusk all agree that the four freedoms are inseparable. This is their prerogative. They wish to preserve the trade-offs that exist in the single market, and it will be their legacy. But to suggest they will change now, when they had the chance to during the former Prime Minister’s renegotiation, is clearly false.
The question of what happens on the island of Ireland is a vexed one. I believe two tests must hold. There must not be a border between the north and the mainland, but there must also be a smooth and frictionless border on the whole island. It may well be the case that the UK opts in to some EU rules to meet this goal. It may well be the case that the whole of the UK ends up following them to avoid internal borders. I see no issue with this. People voted to take back control, and politicians making decisions to keep the union together of their own choice is firmly consistent with that principle. Peace in Ireland is not ours to endanger, and we must make sure to keep it.
It is rare that we in this House should seek to amend such an important piece of legislation. This has been voted on by the people. It has been voted for by the other place, which is elected. It has passed with a majority and it now comes to us. I am of the opinion that if changes ought to be made, the legislators who are in actual contact with public opinion should make them. Brexit remains the biggest issue of my political life, bar perhaps our initial joining and the Falklands War. I would not have been expecting to be involved in those issues were I in this place then. I will not now. If we begin to meddle in affairs decided by the voters, then we cannot hope much for our future as a Chamber. Many will speak today about the need to change the Bill, but I beg noble Lords to ask themselves this question: what mandate do I have?
Lord Kirkhope of Harrogate (Con)
My Lords, I seek to avoid being described as a remoaner so, with your forbearance, I shall instead indulge myself in a little nostalgia.
I do not understand why we seem unable to comprehend that ever since we joined the then European Economic Community, the UK has been a leading player in the reform and expansion of a free, democratic Europe. Our success in changing things has never been properly regarded in this country, or properly exploited. Far from losing influence, we have been wielding it year after year, treaty after treaty, process after process. This power has been executed by successive United Kingdom Governments, aided by our growing influence in the European institutions as they have developed. In the Commission—noble Lords have served as Commissioners—our representation has put great energy into its respective roles. In the Parliament, where I spent the past 17 years, UK MEPs, with one or two notable exceptions, have provided and still provide the democratic input to make and improve European laws for our benefit. When I went to the European Parliament in 1999, Europe was made up of 15 states, and the French language was often the default. Over the next 10 years, as new states joined, the preferred default language became English, and with that came more of the English way in procedures and methods. We failed to capitalise on that, to our enormous discredit.
The single market that now seems so terrible to some of our harder Brexit friends was driven through by Margaret Thatcher and Lord Cockfield. The enlargement of Europe to welcome the states emerging from all the years of dictatorship that they and their peoples had endured was again driven by us—driven by us, my Lords. Lately, the close working of our security services and police, including Europol, a service run by a Brit and on good, proven UK lines, has allowed us to defend British interests in a way that isolation and so-called independence would never allow.
When David Cameron asked our EU partners for some further reforms ahead of the referendum, he got promises which were substantial, not, as some said here, minimal. I know that because I was there, talking to European colleagues. The UK was again in the lead, pushing for reforms which, if they had been implemented, would have shown not only the progress in Europe that was desirable for all but, more importantly, would have endorsed and confirmed our leading role for the 21st century.
It is clear that too many colleagues, especially in the other place, are frozen in an earlier era. They demonstrated some ignorance during the referendum campaign when they presented to the populace an image of Europe that was long gone—a Europe that existed before Margaret Thatcher and David Cameron, and a Europe that ceased to exist as UK influence increased.
One further matter: we talk about the will of the people in the referendum. I have recently been reading some general election manifestos of both major parties before they entered government. Time does not permit me to list the major promises they made, but the list of promises not met when the realities of government presented themselves is numerous. Changes of direction have been common, especially when either the aims became undeliverable when the facts were known, or because, by implementing the policy, the people of the UK would have been harmed, or at least would end up worse off. The Government present a future full of challenges and opportunities, and not a single noble Lord or noble Baroness would balk at having challenges or opportunities but, for the population as a whole, that bravado may not always strike the positive note that the Government intend.
I refer briefly to the amendment moved by the noble Lord, Lord Adonis. The question of a second referendum keeps coming up. I have to state quite clearly that I do not think a second referendum is a sensible approach. That is because the elected House of Commons and its Members, whose names are well known and whose political views on the subject of EU withdrawal are or will be well known, carry the full responsibility for the decisions they take—not the Executive, who supposedly act on the decisions taken in Parliament, but those MPs, who have a grave duty to act in the interests of their constituents and to do them no harm. That must continue. We will see whether they do their duty, because if they get this wrong, they will pay the inevitable price of democracy—a heavy price in some cases.
Once the terms of our withdrawal become clear, it is the duty of the elected House to reflect on whether those terms give us the opportunities that the Government speak of or whether, in implementing them, it is consigning our citizens to long-term decline.
Lord Truscott (Ind Lab)
My Lords, the noble Lord, Lord Triesman, mentioned the importance of security issues. It is also true that, in withdrawing from the EU, as outlined in the Bill before us, we will be withdrawing from the European Union’s common security and defence policy and its common foreign and security policy. These were issues that preoccupied the European Parliament when I was an MEP years ago.
I wish to focus on the issue of British foreign policy post Brexit. I fear that, as we speak, the Foreign and Commonwealth Office is not prepared for Britain’s place in the world post Brexit and does not currently have a foreign policy fit for purpose. There will be a new reality for the UK post Brexit—a world where we need to forge closer political and trade relations with a whole host of partners, some of whom we may not particularly like or even trust. If we are to thrive as a nation, we will need to be pragmatic in our approach. Being pragmatic does not mean we will have to abandon our principles as a democratic country committed to free trade and human rights—several noble Lords mentioned the importance of human rights in the charter. However, it does mean that we will need to develop a more coherent, sophisticated approach to foreign and international affairs—an approach that is painfully absent today.
Frankly, Britain’s current foreign policy is incoherent, contradictory, hypocritical and short-sighted. The UK imposes financial sanctions on more than 20 countries, but sells arms to its ally, Saudi Arabia, which, in Yemen, is helping to cause the greatest humanitarian disaster on the planet today. Saudi-backed military intervention and bombing has led to 2.2 million people being forced to abandon their homes; half the population does not have food and a quarter faces starvation. Until recently, the war in Yemen was one of the most underreported in modern history. Why is that? Could it have something to do with Saudi Arabia’s role as a strategic British ally, trading partner and source of oil? Where is Britain’s moral leadership in Yemen?
Under former Prime Minister Cameron and Chancellor George Osbourne, the Government’s main trade and foreign policy seemed to consist of selling as much of the country as possible to the People’s Republic of China. I note that David Cameron is continuing with this approach in his private capacity as vice-chairman of the £750 million UK-China fund. I welcome foreign direct investment from China as much as anyone, but we should be under no illusions about Beijing’s aims. China has already bought up large swathes of Africa, and it wants to do the same in Europe, including in the UK.
If it cannot buy up our high-tech industries, it is not above trying to penetrate them through covert means. Some 800,000 Chinese are working on cyber in the PRC, many in the People’s Liberation Army and state sectors. The belt and road initiative is designed to extend China’s geopolitical reach, with 900 planned projects and $4 trillion of investment, encompassing about 60 countries. In the meantime, Beijing continues to extend its sphere of influence in the East and South China Seas. Here in the UK, China is a partner in building the extremely expensive Hinkley Point C nuclear power station and wants to build a nuclear plant in Bradwell. If it succeeds in doing so, the UK can forget any notion of energy security.
In the new world order post Brexit, the UK will have to think through its policies more than it does at present. We should, perhaps, question whether making the President of the United States feel unwelcome in London is sensible, whatever one thinks of Donald Trump. The US is our most important ally, vital for inward investment and trade. It is our largest single export market and second-largest import partner. The US is also the UK’s largest single inward investor. Post Brexit, we will need America more than ever. Where possible, we should use the much-vaunted special relationship to influence US policy. We do not need to defer to Washington every single time—for example, in my view, it was a mistake to follow the US into Iraq, which destabilised the entire Middle East and far beyond. Nor should we ever agree with the US over the Paris climate accord and its withdrawal—something that EU member states have stood together to resist to date.
New thinking will be required. Perhaps, for example, the UK should join the Trans-Pacific Partnership Agreement, which is opening up closer trade with the emerging economies of the Asia Pacific region. Of course we will need a close and continuing relationship with continental Europe—and the closer the better in my view. The relationship should encompass not only trade but security, tackling crime and protecting our shared environment. We are leaving the EU but we remain both British and European. In doing so, our foreign policy needs to be thoroughly thought through, with a new sense of purpose and direction.
Baroness Pidding (Con)
My Lords, regardless of which side we supported in the referendum, in listening to the debate today it is clear that we all recognise that our departure from the European Union will be one of the biggest challenges faced by any British Government in modern times. I believe that the health not just of our economy but of our democracy rests on implementing the referendum result and making a success of Brexit. The Government have successfully brought this Bill before us with very few amendments. I know that many noble Lords have strong personal convictions about the EU, but it would be wrong for this unelected Chamber to oppose or attempt to subvert the democratic will of the Government and the people. The other place voted 6:1 to hold a referendum and, in June’s general election, the two main parties took more than 80% of the vote on manifestos that promised to implement the result.
As many noble Lords have said today, it is also important to recognise that this is not a decision-making piece of legislation. Britain’s departure from the EU has already been decided; it was decided when Parliament put the decision in the hands of the people. Nor is this debate about our future relationship with Brussels, which is being negotiated by the Government. Under the operation of Article 50, we shall be leaving the EU in 2019, with or without this Bill in place. We are here to consider and scrutinise what is fundamentally a piece of enabling legislation, which will empower Ministers to implement the country’s decision while offering maximum certainty to our importing and exporting businesses and their European counterparts.
There are undoubtedly many benefits to European co-operation, but membership of an increasingly ill-fitting Union cannot be the only way for us to work together with France, Germany and our other continental partners. The EU’s share of the world economy has roughly halved since we first joined in 1973, despite the addition of many more member states. I believe that Brexit offers us a valuable opportunity to build new relationships with emerging markets in Asia, South America and Africa, markets brimming with the people and skills who will shape this century.
But I recognise that in some cases the referendum result has opened, or at least exposed, some deep divisions in our politics and, yes, in society too. We have a responsibility to deliver a Brexit not just for the 52% who voted leave, but which respects the needs and concerns of those who voted remain, especially those who have built businesses, created jobs and generated prosperity by trading with Europe. This Bill does that: it empowers Ministers to provide a smooth legal transition away from the structures of the EU, and adapt to the inevitable uncertainties of the Brexit process, while offering the maximum possible continuity to British businesses as the Government negotiate our future relationship with Europe.
This Bill is crucial to delivering an orderly and successful Brexit, and I urge this House to heed the example of the other place and speed its passage to the statute book.
Baroness Murphy (CB)
My Lords, I wish that I could agree with the noble Baroness, Lady Pidding. She occupies a wonderful nirvana to which we are all heading following this Bill—but I fear that I do not share her view.
I confess that my original thinking on this Bill was to deny it a Second Reading, since voting on the Bill would end up with headlines in the Sun, the Express and the Telegraph saying, “House of Lords votes to support EU withdrawal Bill”, and there would be no more explanation than that—and that is indeed what will happen. However, I have reluctantly come to the conclusion that that may not be a sensible approach. The noble Lords, Lord Norton of Louth and Lord Framlingham, want us poor remainers to shut up and get on with it and not take up the House’s time during the Bill’s passage. However, this is a Second Reading debate. We will have an awful lot of time in Committee to get to grips with the difficulties of the Bill, which need to be addressed whether you are a remainer or a leaver. I am definitely a remainer and I hope very much that the Bill will eventually contain clauses which will give the public an opportunity to have another think at the end of this process. I am not sure whether that will be in the form of a referendum. I am not keen on referendums—I would not be, would I?—but certainly we need a way of allowing the people of this country to change their minds once they understand what this process really means.
I wish that members of the Government would stop squabbling among themselves over their aim. The referendum gave no clues about what the public think the Bill should contain. Anyway, they are not interested in this kind of a Bill. However, it is about time that the Government had some notion of what we will face in a year’s time. Every minute they spend talking about Brexit, concentrating on it and talking about the divisions between the different factions in the party, they are not addressing the real issues that this country faces such as the failing education system and a hospital system which is failing to work because we have destroyed community care, primary care and social services care. We are failing to provide adequate housing and wages are disgraceful, with working families having to depend on benefits to survive. If those issues had been addressed earlier, we might not have had a referendum and voted to leave the EU.
I am persuaded that a technical Bill of this kind is certainly required, if and when we leave the EU, to avoid the legal hiatus and total uncertainty that would otherwise occur. However, the Bill goes far beyond its obvious original purpose and is drafted in such a way as to deprive Parliament of any sovereignty over much primary legislation. There are some crucial elements such as those contained in the Charter of Fundamental Rights. I am deeply suspicious about why they cannot be transferred. If we want them, why should they not be? I hope that we will take the time to consider what they mean.
I was a bit shocked by the comments of the noble Lord, Lord Ribeiro, on the European working time directive, having worked 48 hours on the trot when I was a junior doctor. The European working time directive has been excellent for our health service. It has changed the culture and the way that consultant doctors treat their juniors. I know that it has been difficult for surgeons in particular, but I do not want it repealed.
The referendum may have established that the majority want to leave the EU, but I still think there must be ways to rethink what we want at the end of the process. I will listen to the proceedings on the Bill with great interest. I will support many of the amendments that seek to make the Bill one we can be proud of, and one which, if we must leave the EU, at least translates into our legislation the good things that the EU has done for us. However, I very much regret that it is necessary to do this.
Baroness Wheatcroft (Con)
My Lords, this House knows what is expected of it. I trust that we will not cower at the lurid threats of tumbrils at the gate voiced by my noble novelist friend Lord Dobbs. We have a duty to perform, summarised on Parliament’s own website, which declares our role to be:
“Checking and shaping draft laws and challenging the work of Government”.
As many noble Lords have already said today, in this instance the work of government really needs challenging.
The Bill is not merely the “cut and paste” of EU law that it has been portrayed as. It changes the balance of power between the UK Parliament and the devolved Administrations; it confers sweeping, wildly undemocratic power on Ministers; and, in Clause 9, it makes provision for “implementing the withdrawal agreement”. Given its implications, we would be failing the country if we did not challenge the Bill’s imperfections. To let fear for our own future prevent us would be self-interested cowardice, not constitutional propriety. My noble friend Lord Dobbs quoted Sir Winston Churchill; two can play at that game. I remind the House that it was Churchill who said that our task was,
“to re-create the European Family, or as much of it as we can, and provide it with a structure under which it can dwell in peace, in safety and in freedom”.
We risk throwing away his legacy.
We are told that the Bill brings business the certainty it craves. It does not. It gives no clarity on where the country is headed after Brexit. Business is clear that it wants to remain in the single market and the customs union. Here I declare my interests as listed in the register. Business knows what the Government are failing to tell the country but BuzzFeed helpfully did this morning: under any scenario other than staying in the single market and the customs union, coming out of the EU will make Britain significantly poorer. As others have said today, Britain did not vote for that.
By the Government’s own reckoning, there are 132,000 companies in the UK that export only to the EU. Far from being the bureaucratic nightmare we keep hearing about, the single market actually works. We will pay a high price for leaving. The Government could assure business now that they are intent on preserving the benign trading environment we enjoy for goods and the all-important services—the arrangement that has produced such prosperity. Instead, all we are promised is a transition deal—but to what? We leave the EU to enter limbo land, while we try to hammer out a deal with no negotiating power. We stride out on to what my noble friend Lord Bridges called,
“a gangplank into thin air”.
Parliament needs to be told, and soon, just what the Government are aiming to achieve, and in terms much more specific than the “deep and special relationship” we hear so much about. That is what we have now. Hope does not equate to policy. To extend the Article 50 process while we negotiate a deal, rather than walking off that gangplank, might be a great deal more sensible.
Ministers must also scrape away the fudge that was so liberally ladled over the issue of Ireland. My noble friend Lord Empey accepts that the issue is “difficult”, albeit he thinks those difficulties minor. But I can see no way of providing Ireland with the borderless, frictionless trade that has been promised other than the UK remaining in the single market and the customs union. If the Minister has found one, perhaps he could spell it out. To a simple soul like me, trade between an EU member state and the independent UK cannot continue post Brexit without a border. Again, hope does not equate to a policy. We need details.
Finally, I join with those who believe that before this country takes the momentous step of leaving the EU, it may be that the people will need to have their say on the terms that are on offer. Opinion polls already show that a significant majority favour such a vote. While I share the view of my noble friend Lord Patten of Barnes that referenda should be avoided, I suspect that if a referendum got you into this mess, the only way out may be another referendum. This may not be the Bill which mandates such a vote, but the time may well come when it is inevitable. The government position seems to be that we have made our bed and we will jolly well lie in it; no matter how uncomfortable this turns out to be, we must get on with it. I find that somewhat perverse, and I suspect the majority of voters would too: let us find a better bed.
Lord Winston (Lab)
My Lords, as the noble Baroness, Lady O’Neill of Bengarve, said, this is a technical Bill. But, as the right reverend Prelate the Bishop of Leeds and my noble friend Lord Davies so ably pointed out, it has human consequences. We cannot escape these consequences, which are massive, and I want to dwell on them briefly.
When Ministers talk of science, they talk about and quote Nobel Prize winners and great scientists. However, when perhaps the greatest scientist of the last century, Albert Einstein, died, within seven hours his brain was taken out of his head, cut into small bits by a pathologist, looked at under a microscope and put in a jar marked “Pickles”. Subsequently, a lady pathologist at Stanford University, miles away from where Einstein had died in New Jersey, had another look at his brain. After excessive dissection, she decided that there was no difference between his and anyone else’s: it had a 100 billion neurons and each was connected in the usual way to 5,000 to 10,000 other neurons. There is a message here, which is rather well explained by my two noble friends on the Front Bench: put together, they have more brain capacity than Albert Einstein—I exclude the Whips and, of course, the Front Bench on the opposite side.
The fact of the matter is that our best innovations and attempts at becoming human come through collaboration and co-operation. This has been said repeatedly in this debate but it is often forgotten; increasingly, it is the key to Europe. Do not forget that for a long time we have stood at the head of science in this country. I genuinely believe, and I think there is evidence to support the belief, that this will slip away. Other European countries are starting to overtake us and we are being left behind. The economy, which has been so important to the Government, must be considered as well.
I want to explain the consequences for one scientist I have come across who is not from my university but from University College London. I left the Chamber to print out his email to me just 10 minutes ago as what he says is a revelation about how many European scientists feel, though he represents far more people than just scientists. He says that he is married to an Englishwoman and has two children, but does not want to take British nationality. Why should he, when he is Italian? He feels totally insecure. This professor—his name, which he has said I can use, is Professor Andrea Sella—wakes up at night with cold sweats worrying about his position in Europe. He says that this is common among many of his friends and I see this at Imperial College as well. He describes what he feels so amazingly that I want to read it to noble Lords. He says:
“The government keeps claiming that in regard to EU nationals all is settled. Yet it remains completely unclear what rights we will have in the UK after the UK leaves the EU. We’ve paid our taxes for decades but everything is uncertain. What is our access to healthcare? What about other services?”.
He goes on to ask about elderly parents who live overseas who may need care and who may wish to come to this country for that care, with their children’s help. He says he had always assumed that people might be able to bring their elderly parents over but now he is not so certain. He talks about the 3 million people who can apply for citizenship but points out that the Home Office is completely overwhelmed—that passports are missing for months on end and that in the past people have had to fill out an 85-page document, which adds to the complication. Of course, this becomes completely impossible for many people to manage.
He goes on to say something rather sad:
“Just a few days ago David Davis sat in front of Hilary Benn’s parliamentary select committee and waffled about our ‘anxiety, real or imagined’. What planet does he live on?”.
That is a really serious issue. There is an aspect of unreality about how this affects so many people whom we regard as our friends and colleagues and who contribute massively.
I shall tell your Lordships about Andrea Sella. This man is a leading chemist in this country—a professor. He regularly goes into schools and has probably spoken to around 100,000 schoolchildren in the United Kingdom over the last five or seven years. I have seen his activities—they are immense and purely charitable. There are very many scientists like him who help with our civilisation, and what is happening is a real risk.
He ends his email on a very poignant note. Perhaps in saying this, I could point out that I watched the noble Lord, Lord Callanan, shake his head when he heard my noble friend Lord Triesman speak. At the end of his email Andrea Sella talks about a maternal ancestor. He is not Jewish but his ancestor was. Apparently she called him early in the morning when the result of the referendum became clear. She said, her voice choking with emotion:
“How can these people forget so soon where nationalism leads you?”.
I must tell the noble Lord, Lord Callanan, that, amazingly, a number of Jewish people are now applying for German citizenship, so perhaps he will understand that some of us feel a bit offended when he talks about the House of Lords in the way that he apparently did—if what my noble friend Lord Adonis said is true. I hope that, when he comes to sum up at the end of this debate tomorrow evening, he will put the record straight and point out that these human issues are really important—and really important to us in the House of Lords.
Lord Burnett (LD)
My Lords, it is a great pleasure for me to follow the noble Lord, Lord Winston. He has a wealth of knowledge and experience. Furthermore, he made a moving and compelling speech, and the Minister would do well to listen to it and heed his words and those of the noble Lord, Lord Triesman.
I draw attention to my entries in the register of Members’ interests.
I agree with much of what has been said so far in relation to the unsatisfactory nature of parts of the Bill—especially the sweeping powers that it would, in its current form, give Ministers. I also believe that, for the reasons I shall give, the British people should have the opportunity to give their opinion on the terms of Britain’s withdrawal from the European Union.
Many people were extremely confused at the time of the referendum and no one can now say that at that time they could gauge or foresee the conditions, let alone the consequences, of leaving. That is hardly surprising because the Government, with only 14 months to go, seem to have no idea exactly what form of Brexit they are aiming for. As other noble Lords have observed, the Government cannot even agree between themselves a negotiating position.
Other noble Lords have mentioned that there is a very high level of concern in the country about whether we are going to crash out in 14 months’ time with no arrangements agreed with our European partners. The opinion polls are moving against leaving and are strongly moving in favour of the public having the final say once the terms are agreed. It is not difficult to understand why there is this profound concern and worry.
As the noble Baroness, Lady Wheatcroft, said, people are aware that the Governor of the Bank of England has said that the referendum vote has already cost the United Kingdom £20 billion in forgone GDP. This will continue at a higher level if we leave the EU, depending on the terms, if any, that are finally agreed with our EU partners. This dwarfs the net £165 million per week that the UK actually pays the EU, allowing for the rebate and EU investment in the United Kingdom.
It is anticipated that the Treasury will provide impact assessments for various Brexit options, but explicitly excluded from those is the one option that would be most beneficial to the United Kingdom economy: remaining in the European Union, although perhaps a reformed one. The adverse impact of the decision to leave is of growing concern to everyone in the country. A factory worker in the United Kingdom providing part of an international manufacturing process will be deeply concerned about his job, post Brexit, if there are tariffs and customs checks on goods that move in and out of Britain during the manufacturing process.
In any event, we will have to comply with EU regulations and conditions for the work done with other EU countries. Those in the agricultural and horticultural industries are uncertain as to whether they will be able to continue to hire people from Europe to cultivate and harvest crops. There is deep concern that if a trade deal with the United States is eventually negotiated, agriculture and horticulture will be another industry that will be sacrificed, allowing produce to be imported with far lower standards of husbandry and subject to the use of growth promoters and other processes that are currently forbidden. These products will flood into the country and undermine the value of livestock, cereals and other crops.
Some 60% of those who work in the hospitality industry in London—and 40% outside London—come from other EU countries. What arrangements will be available to the hospitality industry to allow this to continue? The same profound concerns are mirrored in the National Health Service and the care and education sectors. As we have heard from noble Lords, there is deep concern that a mechanism must be made available for Northern Ireland and the Republic of Ireland to continue to have the same access as now. Perhaps the Minister will tell us how that will happen without membership of the single market and customs union. Finally, what about the 80% of our economy that is the service sector? Will we continue to have passporting rights into Europe? The French President stated recently that the only way that can be achieved is by staying in the single market and the customs union.
When Article 50 was triggered, we started a journey. We still have no idea of the destination. Neither do the Government. People are unable to gauge the effect that this will have on them and their livelihoods. There is an unseemly rush to leave the EU before the public know the final destination. On the matter of sovereignty, when, or if, we leave the EU—the largest trading bloc in the world—and start to negotiate a deal with the United States, we will have nowhere else to run. The United States negotiators will be extremely tough. They are there, as they always have been, to put America first. Every other country puts its interests first. We will then find out exactly what it means to be a vassal state.
The Duke of Wellington (Con)
My Lords, at the end of a long day, I am sure we will all be brief. I will try to be so. I will restrict myself to commenting only on the provisions of the Bill. As always, I must declare my European interests, as detailed in the register, and add that I was an MEP for 10 years in the 1980s.
The Bill is about how to get European law on to our statute book. It is clearly necessary for the good government of the country and, at its Second Reading, I think it should be supported. However, this House, which has so much expertise and a deserved reputation for the effectiveness of its scrutiny, must make some changes to the Bill, in my opinion. I do not accept, as has been suggested by one or two noble Lords, the idea that amending the Bill amounts in some way to obstructing Brexit. In fact, it is probable that the Government are expecting the House to make some changes, and I have some concerns.
First, as a non-lawyer, I am concerned by the very great powers that Ministers are taking to themselves to make statutory instruments in great volume and great substance. Many Members of both Houses of Parliament wish to see control pass back from Brussels to London, but surely to Parliament, not to government Ministers. There will be amendments in Committee to constrain the powers in Clauses 7 and 9 and I am minded to support those amendments.
I first learned about Henry VIII powers when I chaired a lecture at King’s College London given by the noble and learned Lord, Lord Judge. I am therefore aware of the tendency of Ministers of all parties to propose ever-increasing numbers of statutory instruments, but in this Bill it has gone too far and Parliament should restrict these powers as much as possible.
My second concern is that the Government find it necessary to amend their own Bill by inserting an exact time and date for exit day. I realise that there is a power to change this, but I favour deleting the date from the Bill altogether. The only point that matters now is that the Government should be given as much flexibility as possible to try to negotiate a satisfactory agreement and a final deal that does not damage the economy. We must all hope that the Government can formulate a coherent negotiating position and that other Ministers can refrain from making comments outside of their own responsibilities.
I have still not heard a satisfactory explanation of how we can keep a totally open border between Northern Ireland and the Republic while we leave the single market and the customs union. When the Minister replies, can he address this point? My final concern is in respect of the devolved Administrations. If the decision of the referendum was to take back control, it was surely to this Parliament and on devolved matters to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, when it resumes. There is a very regrettable impression given on this and other matters that the Government wish to take power back from Brussels to themselves and not to this Parliament and the devolved legislatures.
We have a duty in this House to accept the principle of the Bill, but to seek to scrutinise, amend and improve. Indeed, as our own Constitution Committee has declared and has much been quoted in this debate, the Bill as drafted is “constitutionally unacceptable”. That surely means that we have a duty to amend it. I hope that during the passage of this Bill through this House, Ministers will make concessions to ensure that Parliament indeed has more control. If that can happen, this House will have done its duty.
Baroness O'Loan (CB)
My Lords, I will speak on two issues. The first is the Secondary Legislation Scrutiny Committee, to which I belong, and the second is Northern Ireland. The Minister referred in her opening remarks to the Secondary Legislation Scrutiny Committee and to the question of the additional scrutiny that will be the responsibility of the committee. We stand ready to serve and we are reassured by the statements about enhanced membership and resources for the committee. But I cannot help wondering from whence the Government found the figure of 800 to 1,000 measures that will be necessary to deal with the fallout from withdrawal. If I look at the number of areas of intersection between EU law and UK law, I cannot believe that it will be dealt with as quickly as that. Will the Minister explain why the Government say that there will be only about 1,000 instruments? Are they sure—or even fairly sure? Can we really plan this very important work on that basis?
On Northern Ireland, we have heard at length from noble Lords from all the devolved Administrations who expressed their concern about the effect of the Bill, which is the biggest framework Bill that I have ever seen in terms of the magnitude of the instruments with which it deals. It attempts to provide mechanisms for dealing with situations that we are not yet capable of analysing with any degree of accuracy. Other noble Lords have quoted the Constitution Committee’s description of the situation as “uncharted territory”. It is particularly uncharted for Northern Ireland as we contemplate the range of policy areas and powers returning from the EU that intersect with the devolution settlement in Northern Ireland—some 141 of them, ranging from agriculture to animal welfare to consumer law, in itself a massive area, company law, environmental law, forestry, healthcare, transport procurement and so on. All these areas of law have evolved through Europe. Under the Bill they will be effectively frozen as retained European law.
Currently, devolved institutions are prevented from legislating or otherwise acting in a way that is incompatible with EU law. For the purposes of Northern Ireland, this Bill will change the law so that:
“The Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law”.
The Government have stated that powers to legislate will then be released in the manner described in the Bill. Some of these areas of activity devolved under the Welsh, Scottish and Northern Irish arrangements, such as agriculture, are governed by common frameworks, and the Government are concerned to ensure that there will continue to exist a common UK framework once the EU framework ceases to be binding.
The Government therefore propose, as the Minister for the Cabinet Office David Lidington explained at Report in the other place, that direct EU legislation that applies uniformly across the UK will be corrected, at UK level in the first instance, to avoid the risk of early unhelpful divergence in areas where it may ultimately be determined that a common approach should apply. In these areas the Bill will prevent the devolved Assemblies from legislating on matters until they are released to do so by the Government. At Third Reading in the other place, the Secretary of State said that the Government had intensified their discussions with the devolved institutions and reiterated the Government’s intention to bring forward amendments in your Lordships’ House.
The excellent briefing provided by the House Library researchers contains little reference to these issues as they affect Northern Ireland, while reporting at length on the various views expressed by the Welsh Assembly and the Scottish Parliament. That is because no views have been expressed from Northern Ireland. There can be no discussion with Northern Irish legislators because we do not have any. We have not had any for over a year. There was nobody with whom to discuss these issues since we do not have a functioning Executive and civil servants cannot act politically as Governments can. Northern Ireland has been unrepresented in effect.
Both the Welsh and Scottish Governments have expressed their total rejection of Clause 11 as drafted and called for an amended Clause 11. Both legislatures are up in arms about what is described as a “power grab” by Westminster. Through this Bill the Government will effectively be taking back powers which had previously been devolved, albeit possibly temporarily. My question is how the interests of the people of Northern Ireland, predominantly agricultural and agrifood-related, will be protected.
We have been assured that there will be no hard border. InterTradeIreland estimates that some 177,000 lorries and 250,000 vans cross the border every month for trade purposes. That is a lot of trade, carried on in 90% of cases from Northern Ireland by small companies with fewer than 50 employees. They are very vulnerable to the uncertainties of this frictionless border of which we have been assured. They are even more vulnerable to the time that may be required to make everything work after withdrawal.
I used to teach European Union commercial law and I do not understand how we can have regulatory alignment with Ireland without being regulated exactly as we are currently under EU customs law and the single market rules. If we are to be regulated in that way, effectively we must be part of the customs union and the single market. We cannot have different rules and be in regulatory alignment.
Ireland is Northern Ireland’s largest trading partner, accounting for nearly 30% of its trade in goods. It is much more complicated than that, though. Goods are produced in part on one side of the border, with further activity on the other side of the border. How many of you have drunk Baileys or bought a bottle? It is produced in Dublin, bottled about 20 miles from where I live in the north, in Mallusk, re-exported to Ireland and then exported from Dublin. During peak production up to 500,000 bottles a day are produced, according to Diageo. What happens if crossing the border becomes an issue—if duties become a problem?
The sensitivities, and the risks of the uncomfortable situation in which we have no legislature and no voice, have been recognised by the EU 27 and by the Government. Assurances have been given that we will be protected, but it is surely inevitable that the UK Government will legislate for the greater good of the UK, as opposed to that of Northern Ireland alone or Northern Ireland in its trading relationships with Ireland, with inevitable consequences. My question to the Minister is: what steps will be taken to deal with this lacuna? How will the interests of the people be taken into account when there is neither devolved government nor direct rule? When will the discussions promised in the other place take place and when will we receive the Government’s proposed amendments?
The Earl of Arran (Con)
My Lords, it is indeed late and I will be brief, but I want to talk on a topic on which there was some discussion in another place, namely the environment; not the political environment, thank goodness, but the climatic environment. At this point, I need to declare an interest in that my wife has family farming interests in Devon.
We all know that the countryside contains wonderful environmental features—waterways, meadows and forests which we all know and love. Polling by the Country Land and Business Association, of which I am a member, shows that more than eight in 10 members of the public think that the Government should spend money on preserving and managing the countryside. It is a fact that many of the rules and regulations that govern how we care for the environment and the wider countryside have their beginnings in European Union law. We must ensure, therefore, that the Bill is not used to reduce these protections. However, the UK’s exit from the European Union also represents a chance to enhance how we care for the environment and introduce policies that deliver on UK priorities, rather than focus on the needs of 28 different countries. The Government’s 25-year plan for the environment is a welcome starting point but there is much more work to be done to make these plans more specific. Much of what is proposed will require significant investment from a range of sources consistently delivered over decades, well beyond the scope of the Bill.
Key to ensuring that the UK continues to be a leader in promoting and protecting the environment post Brexit will be farmers and landowners, who frequently undertake much of the work that is often taken for granted—I particularly remember this, as an Agriculture Minister in Northern Ireland and an Environment Minister here. From storing water to help prevent flooding, to providing habitats for wildlife, farmers and landowners take these responsibilities very seriously. British farmers produce the highest quality affordable food that is greatly valued by the British public and is the envy of people all over the world. The farming industry directly employs 400,000 people and more than 70% of the UK’s landmass is used for farming.
More widely, farming underpins a food and drink industry that contributes more than £100 billion each year to the UK economy and employs 3.8 million people. It is a vital part not just of the rural economy but of the national economy. However, I am concerned that, having clearly set out his environmental credentials, the Secretary of State has yet to do so for farming. He must do this as a matter of urgency: farming must not be forgotten or left behind in a drive to deliver environmental benefits. We need to remind ourselves that what we eat every day, including, I say very humbly, here in this House, is almost certainly a product of British farms and British waters. I urge the Government to ensure that they do not just rely on this Bill to protect the environment but also, crucially, to ensure a thriving and value-for-money agriculture sector.
Lord O’Neill of Clackmannan (Lab)
My Lords, I start by saying that I am a remainer who would like to have the opportunity to vote for a second referendum Bill but not, I think, in the context of this piece of legislation. The Bill has been dismissed by some as merely an enabling—that is, it is primarily about process. I would add a cautionary note here and say that when we deal with matters of process we very quickly become engaged in areas of substance. The Bill has a number of areas where more work needs to be done. This is nothing new: in my experience of the Commons, and even of this House, a Bill that starts at Second Reading, goes through Committee and Report and ends up here, results in many different amendments. Certainly, this Bill is not the finished article. The range and complexity of the topics it covers and the need for much of it to be agreed with EU negotiators means that there is still much to be done. That may be proposed as an excuse for its inadequacies—if that is the right word—but there are certain areas where it is not a get-out clause for Government.
A number of noble Lords have referred today to the so-called Henry VIII powers, and I believe that this is such an area, because it will not go away. The Constitution Committee has pointed out that there may well be some areas where change can be achieved only by the use of Henry VIII-type measures—declaratory ones, or certain forms of statutory instrument. It is a general rule, however, that it is unacceptable for primary legislation to be amended by any means other than the full parliamentary process. If it is not subject to parliamentary scrutiny, that is quite likely to prejudice the acceptability of a lot of other changes that the Bill intends to enact.
Withdrawal from the EU is controversial. The referendum result was not overwhelming. A majority of one is enough, but it is incumbent on the Government to achieve a working consensus. This is not a binary, winner takes all, process. The Scottish independence referendum was an electoral civil war in Scotland, from which the country has not yet recovered, and that referendum resulted in a far bigger majority. I mention this because there is still a pronounced fragility about the state of the union as far as Scotland is concerned. Reference has been made to Clause 11, and the problems that this presents not just to Scotland but to Wales and Northern Ireland. There are those who will be quite happy to exploit some of these difficulties for their own purposes.
I would like to think that the Government will give this area a far higher priority, that process is dealt with here quickly and that the amendments acceptable to Parliament, Assemblies and both Houses can be produced in good time. If we do not do that, we could be dealing with withdrawal Bills of a rather different character before too long.
The Government have said that everything is moving and will be okay. So far the record does not suggest that we can take that with a great deal of confidence. Nevertheless, if the Government are going to come to this House with the amendments that everyone seems to recognise as desirable, they will have to do so quickly—before Report and Third Reading. I would like to think that if we can do that, we may not get other challenges to the unity of the United Kingdom, let alone our relationship with Europe. It is, however, fair to say that if we can get legislation that covers a wide range of the necessary amendments—those that most members of this House would be prepared to accept—then it would be only reasonable at that stage to have the opportunity of a truly meaningful vote on the settlement. Then, if required, we could put it to the country as a whole.
However, time is not on our side and we need to address this with a far greater degree of urgency. But the urgency with which we must address it should not be regarded as an excuse for driving the Bill through on a series of timetable Motions or threats of a kind that would simply recreate the current resentment, which we have a chance to diminish in the very near future.
Baroness Morris of Bolton (Con)
My Lords, no one ever said that the process of leaving the EU was going to be easy, and we are in for some interesting days and discussions during the further stages of this Bill. As my noble friend the Leader of the House explained so well, put simply the Bill seeks to ensure that by the time we leave the EU, laws which currently govern our everyday lives and give protection to us as individuals, businesses and institutions will be transferred to UK law to ensure continuity and certainty.
In this process, there are those who fear that the Government are making a power grab and that hard fought-for rights and obligations might be threatened. Yet others such as my noble friend Lady Eaton would like to see that process built on to provide greater freedoms for local communities. These are understandable issues and concerns and it is right that, during debate on the Bill, they should be explored to see whether improvements are needed. But what would not be right would be for this House to seek to frustrate that process and to set it at odds with the elected House. It was most reassuring to hear from the noble Baroness, Lady Smith of Basildon, and other noble Lords across the House that this is not their intention. I hope that intention will hold when we start to get into the detail of the most contentious issues.
It is inevitable that throughout today’s debate there has been discussion of our future economic relationship with the European Union. The noble Lords, Lord Mandelson and Lord Hain, along with my noble friend Lady Wheatcroft and others, have said how important it is that we stay in the single market and the customs union. Staying in either of these would mean accepting many of the rules and regulations of the EU that were disliked by the British people and instrumental in leading to a no vote in the referendum, without the corresponding balance of a seat at the negotiating table to argue our corner. If that were to be the case, it would be legitimate to ask what all this palaver had been about.
This is especially the case with the customs union, membership of which would not allow us to negotiate our own free trade agreements with other countries—however difficult those may be, as we heard from the noble Lord, Lord Wilson of Dinton. Yet the IMF’s latest World Economic Outlook database calculates that 90% of future growth will come from outside the European Union. It is these countries which will give the UK the opportunities for new business and increased prosperity. So it is vital that we as a country are free to negotiate and strike deals throughout the world. I declare my interest as one of the Prime Minister’s trade envoys.
The right reverend Prelate the Bishop of Leeds and my noble friend Lord Bridges both asked, “What kind of Britain do we want to live in?”. It may surprise some of your Lordships to know that in the referendum I voted to remain, not for economic reasons but for those things so eloquently expressed by the noble Baroness, Lady Royall of Blaisdon, such as tolerance and friendship—the things that the noble Lords, Lord Triesman and Lord Winston, hold so dearly. It was also for the collaboration in a host of areas which I felt brought stability in a world which does not always have a surplus of that. I know that your Lordships might think me a bright-eyed optimist but I am encouraged that these relationships will flourish. I am trying to look at it in a different way now. But I am encouraged—I know noble Lords might think that I am a bright-eyed optimist—that these relationships will flourish, and I am trying to look at it in a different way now. As my noble friend Lady Finn is fond of saying, we were in with opt-outs, now we will be out with opt-ins. There will be many areas of future co-operation, not least on our security and intelligence operations, which are as essential for the security of Europe as they are for us.
Finally, the noble Lord, Lord Adonis, whom I consider a good friend, along with many others is passionate in his desire to stay in the European Union, and I fully understand that. But we have had that debate, and I fear that a second referendum would weaken our negotiating hand and extend uncertainty. As we have already heard from my noble friend Lord Hill of Oareford, business leaders are saying that the political paralysis caused by the process of Brexit depresses them more than Brexit itself. People just want us to get on with it.
I sincerely hope that we can all come together and that the creative and ingenious among our number, many of whom are bitterly disappointed by Brexit, will focus their talents and energies on helping to make this Bill and Brexit a success in the future interests of our country.