Grand Committee
(5 years, 10 months ago)
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The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, I remind your Lordships that if a Division is called in the House, the Grand Committee will adjourn for 10 minutes.
Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018
(5 years, 10 months ago)
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Lord Henley
That the Grand Committee do consider the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)
My Lords, if it is convenient, I shall speak also to the Patents (Amendment) (EU Exit) Regulations 2018—
Lord Henley
Will the noble Lord give way until I complete this sentence? I shall speak also to the Trade Marks (Amendment etc.) (EU Exit) Regulations 2018, which were laid before the House on 28 November. I shall give way to whichever noble Lord wishes to speak first.
Lord Adonis (Lab)
May I ask that these regulations be considered separately? Can the noble Lord also tell us whether they have been debated in the House of Commons? I could not find any reference to a Hansard account of such a debate in the Commons. If they have been, can he give us a reference to the debate?
Lord Henley
My Lords, I am not aware that these regulations have yet been through the Commons, but they will in the usual way in due course. It has been agreed, and it has been advertised on the Order Paper, that we would take these three regulations—
Lord Foulkes of Cumnock (Lab Co-op)
With respect, that is only if everyone agrees—and I for one do not agree.
Lord Henley
I notice that the noble Lord does not agree, but in line with the usual courtesies of the House, it would have been helpful if he had at least mentioned this to his noble friend the Opposition Chief Whip or even to my noble friend the Government Chief Whip.
Lord Henley
If the noble Baroness will give way and be patient. If it is convenient to the Committee, I think that what I will do is speak to all three sets of regulations and I will then move the first one. It is then open to noble Lords, when I formally move the others, to speak to them. For the moment, I intend to speak to all three—
Baroness Kingsmill
My Lords, this is not the most sensible way to proceed. Distinct legal issues arise in each of these statutory instruments and it would be much more sensible if they were debated separately. Having sat on this Committee in which these instruments are put forward, I recognise that it is sometimes easier in terms of efficiency to take them all together. However, these instruments give rise to serious, distinct and important issues, and they really ought to be debated separately.
Lord Warner (CB)
Can I be clear on what the noble Lord is saying? Is he saying that he will move these three regulations en bloc and make his speech on all three, but he expects the rest of us to wait until he formally moves the individual regulations before we speak to them? That does seem to be a slightly “Fred Karno” way of proceeding.
Lord Henley
My Lords, obviously I am in the hands of the Committee and I am quite happy to do whatever the Committee finds most convenient. I did not say that I would move all three en bloc; I said that I would move the first one and then speak to all three. That is very different, if the noble Lord follows me. The only point I was making is that there is an understanding that certain things are agreed by the usual channels and that these instruments would be spoken to together. One of the usual courtesies of the Committee, but obviously the noble Lord does not wish to follow that, is that one would have a word with the usual channels, or at least the noble Lord’s noble friend.
Lord Foulkes of Cumnock
That is a terrible way to address another Member of the House. Will the noble Lord withdraw that remark immediately? This is absolutely disgraceful. I have never been treated like that before by anyone.
Lord Henley
I will apologise to the noble Lord for that. He has probably been treated in much the same way on many occasions. I am just explaining to him what the usual procedures are. If he does not want me to do that, I will take it back and go back to the beginning—if he will give me a couple of minutes—move the first regulation, speak to that, listen to noble Lords and then do the others.
Baroness Corston (Lab)
The noble Lord said that he will apologise; when will that happen?
Lord Henley
The noble Baroness and noble Lords opposite are having fun. I will continue.
Lord Foulkes of Cumnock
I have never been addressed in that way before by a colleague, in 26 years in the House of Commons and now 13 in the House of Lords: by someone saying, “Sit down!” in a peremptory fashion. Perhaps if the noble Lord had said, “I am not prepared to give way at this moment”, we would have understood. I was rising to say that if this Minister had any degree of sensitivity at all, and if he had been watching what had been going on on the Floor of the House and in this Committee, he would have seen that we have on a number of occasions challenged these matters being taken together. I have done it myself on three or four occasions on the Floor of the House, and I have done it twice in this Committee. A number of other Members, including my noble friend Lord Adonis, have also raised the issue. If the Minister had been aware, he would have understood that. I have also mentioned it to our Chief Whip and to the noble Lord, Lord Taylor, the Government Chief Whip. If that has not been communicated to the noble Lord, Lord Henley, it is certainly not our fault.
Lord Henley
My Lords, no communications have come to me to the effect that the noble Lord wished to take these three regulations separately. My understanding was that we would take them together, and I thought that it would be convenient to the Committee. I have now amended what I am going to say and, if the noble Lord is happy with this, I will go back to what I said originally and move and speak to the first one, and if the noble Lord and his noble friend, the noble Lord, Lord Stevenson, will bear with me, we will take all three separately. I have a number of speeches, and I can use whichever the noble Lord prefers to have first. However, he would probably prefer to have the first one, concerning the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations, which were laid before the House on 27 November.
This draft instrument ensures that the United Kingdom’s domestic rules for the exhaustion of intellectual property rights will continue to function in a predictable manner in a scenario where there is no negotiated agreement on the terms of the UK’s exit from the EU. The UK is recognised for its strong intellectual property regime—
Lord Tyler (LD)
My Lords, can the Minister expand for a moment on what he has just said? Am I to understand that these regulations, like the SIs we had in Grand Committee last Wednesday, are a government contingency planning proposal for the very exceptional circumstances of a no-deal exit from the EU on 29 March? If so, can he consider the contribution from his noble friend Lord Deben during our sitting last Wednesday? He and many others pointed out that, since the Prime Minister is now making it clear that the no-deal outcome is not her Government’s preference—she said that it is both undesirable and unlikely—what we are doing this afternoon concerns the very speculative situation which the Government themselves are opposed to. Can the Minister confirm that?
Lord Henley
My Lords, what we are doing concerns the event the noble Lord is addressing—that is, if there is no deal. If there is no deal, we will need these regulations; if there is a deal, they are irrelevant. It is as simple as that.
Baroness Kingsmill
My Lords, is the clarification which the Minister has so helpfully given clear in the regulations: that they will fall into desuetude in the event of no deal?
Lord Henley
I am making it clear in my speech that these are no-deal regulations. They are described as EU exit regulations; that is the point behind them. In the event of there being no deal, they come into effect.
Baroness Kingsmill
Exit has many meanings. It would be clearer if it said in the regulations that they will fall in a no-deal situation.
Lord Henley
I am making it clear to the Committee that they fall—they have no effect—if there is a deal. The point of them is to deal with the unlikely eventuality of there being no deal—or if there is no exit.
We are looking for a deal. We hope there will be a deal, in which case our proceedings are irrelevant and the regulations will have no effect. If there is no deal, obviously we will need them.
If I may make a little progress, I will continue. I believe that we are recognised for our strong intellectual property regime. We were ranked third in the world by Taylor Wessing in 2016, and our enforcement regime was ranked first by the US Chamber of Commerce in 2017. UK businesses are reliant on IP rights—IP-intensive industries generated more than a quarter of UK employment and 43% of UK GDP in 2013. The IP framework is designed to provide a balance. It should reward creators of IP and encourage innovation, while balancing the needs of other businesses and consumers by managing the scope and duration of, and exceptions to, rights.
The intellectual property framework provides rights holders with some exclusive entitlements, such as the right to control distribution of a protected product. However, there are instances where this right is limited in order to promote the free flow of goods across borders.
The exhaustion of IP rights refers to the loss of the right to control the distribution and resale of the product once it has been placed on the market in the specific territory by or with the permission of the rights holder. The UK is currently part of a regional exhaustion regime which allows the movement of IP-protected goods across borders within the European Economic Area once they have been placed on the market by or with the permission of the rights holder anywhere within the European Economic Area. This regional regime enables a balance between allowing rights holders to recoup the investment in innovation while facilitating the secondary market and free circulation of goods within this area.
The UK laws which currently provide for this regional exhaustion regime need to be amended to ensure that they continue to function appropriately after exit. The statutory instruments will ensure that there will be no change to the position on exhaustion rights in relation to the parallel importation of goods from the EEA to the UK. There may, however, be restrictions on what can be exported from the UK to the EEA on the same parallel basis, but that is a matter for the EU legal system and is not something we can control.
Baroness Kingsmill
From what the Minister just said, it sounds as though British holders of intellectual property could be at a significant disadvantage. Is that in fact the case?
Lord Henley
Obviously, there will be changes once we move out. We are trying to set out what will happen to British businesses here. Obviously, we cannot control what happens in the EEA. There might be disadvantages. That is why we are seeking to get a deal. The regulations relate to what happens if there is no deal.
Baroness Kingsmill
I have been the chairman of a number of companies holding significant intellectual property rights. I am very concerned that there appears not to have been any consultation on these matters. Can the Minister correct me if I am wrong and tell me what consultation there has been? When we are considering regulations that could put British businesses at a major disadvantage, it is very important that consultation should have taken place.
Lord Henley
My Lords, I will deal with consultation when I wind up this debate after the noble Baroness and others have spoken.
Baroness Corston
Paragraph 10.1 of the Explanatory Memorandum says:
“No formal consultation has been carried”.
Lord Henley
My Lords, there has been no formal consultation. Obviously, there have been informal discussions, as officials always have, but there has been no formal consultation by me and other Ministers. The Intellectual Property Office—
Lord Henley
Could I finish this point? The Intellectual Property Office has been engaging with businesses across a number of sectors on the implications of exit since the referendum result.
Lord Adonis
Why has there been no formal consultation, given the interests at stake to which my noble friend has just referred? Should these regulations not be withdrawn so that there can be formal consultation and the House can take account of it before we agree the measure?
Lord Henley
It is important that we make sure that we are capable of dealing with no deal. That is why government has taken various actions for a no-deal scenario. At the same time, negotiations should continue on what that deal should consist of to make sure that we get that right. As I made clear, the Intellectual Property Office has been engaging with businesses across the sector and will continue to do so to make sure that we get the right deal that will satisfy the noble Lord and others.
Lord Adonis
Can the Minister tell us what the results of that informal consultation have been? It is important to the Grand Committee that we know what views businesses have expressed to the noble Lord’s department.
Lord Henley
At this stage, I am not in a position to tell the noble Lord the result of that consultation, or those discussions. What I can say is that we will continue to try to get the right deal. That is the important thing—the noble Lord and I might be at one on that point. These regulations are about making sure that, should there be no deal, we are in a position to deal with that side of things—obviously, in no deal, we cannot deal with the other side. We want to be able to deal with those things that are within our control.
Baroness Kingsmill
My Lords, we are trying to do our job here. The Minister has confirmed that the regulations potentially put British businesses at a disadvantage, because there will a number of situations where they will not be able to export the goods they currently export. In those circumstances, we need to think carefully about these regulations. Some of the results of the consultation should be made available to us. I know that none of the businesses with which I am concerned has been consulted, including small and large. I would be grateful for some tangible evidence of the results of the consultation. This is important to us; British business will be placed at a significant disadvantage.
Lord Warner
I may be able to help the Minister because I spoke to the IPO this morning about the second set of regulations. It is clear that there was no formal consultation with the trade body representing the companies affected by those regulations. If I were being a little unkind, it sounded as though officials got hold whoever they could to have a chat. To be fair to the IPO, it never made any claim that it had had a formal consultation. I give the Committee that information in relation to the second set of regulations because it may have been the pattern applied to all these regulations. Perhaps the Minister could clarify that.
Lord Henley
My Lords, I thought that we were debating the first set of regulations at this stage. We will get on to second set in due course as the noble Lord wishes.
As the noble Baroness, Lady Kingsmill, and I know, there will obviously be changes for businesses as a result of Brexit. There will be different changes for businesses if there is a no-deal Brexit. These regulations are about dealing with the no-deal scenario. The noble Baroness, the noble Lord and all noble Lords would think we were wrong if we did nothing about the possibility of a no-deal Brexit. That is why we are moving a number of regulations at this stage and why we published various technical notices and made them available to industry. That is why the original drafts of the technical notices led to various improvements.
At this stage, we know that business wants, in the main, to have the status quo in the event of a no-deal Brexit, and we hope that it will also have the status quo if there is a deal. We want to see what the deal is first and get that dealt with. However, in the event that it happens, we also have to make provision for there being—
Lord Henley
I will give way to the noble Lord in a minute, when I have finished. I can only answer points if I am allowed to complete them as they come up. We will try to get the no-deal provision set up in the manner which is best for business, to the extent that we can deal with no deal. If there is no deal, there will obviously be changes that we have no control of. The noble Baroness and I know that; everyone does. If there is a deal, as I hope, then everything is fine. I doubt that the noble Lord, Lord Adonis, would be happy but then he probably never will.
Lord Henley
That is not a matter for debate on this occasion. We are not discussing that.
Lord Tyler
I am grateful to the Minister, who has been generous in his advice to the Grand Committee, but I have a specific question on the point he has just made. The implication of what he has just said is that his department is already preparing, in parallel, the secondary legislation that will be required if the Prime Minister’s deal does go through. Or is he saying that, if the Prime Minister’s preferred outcome does get the support of Parliament, there will be no necessity for any secondary legislation? This is a very important distinction. If it is necessary to introduce secondary legislation to implement the specific responsibilities of government under the deal that the Prime Minister now prefers, then your Lordships’ House—which is going to have to consider it in due course—should know. On the one hand, we have this set of proposals, which is speculative, but there is something that might conceivably be more advantageous, both for the Government’s business and for the proper consideration of secondary legislation by this House. Is a parallel exercise going on for what the Prime Minister herself says is her preferred and more likely outcome?
Lord Henley
There is the Prime Minister’s deal, which I very much hope another place will agree to in due course. The noble Lord will be the first to accept that another deal might come forward. My department will be ready for that to make sure that, whatever deal comes about, we can then negotiate—we have the transition period for that—the right deal to ensure that in due course, we have the right regime in place concerning the issues we are discussing.
What we are discussing here today is that no-deal option. As I have made clear to the noble Baroness, Lady Kingsmill, and others, that no-deal option will not necessarily satisfy everyone, and we will not necessarily be able to do everything possible to make sure that businesses have exactly the same regime, as we can control only what happens here. Other things might have to be left undone, if I can put it in those terms.
What we have to do here, in debating these regulations, which relate to a no deal, is to try to make sure that we can offer to business—that is why we are putting them forward—the best possible option in the event of no deal. That is what I am trying to do today and what I will continue to do if the noble Lord—
Baroness Kingsmill
I hate to labour the point, but the Minister did himself say that British businesses will potentially be at a significant disadvantage, and that that is what these regulations are trying to deal with. Does he not think that this ought to be debated in the Chamber—that it should be subject to a wider debate?
Lord Henley
The noble Baroness is putting words into my mouth that I did not utter in saying that I thought British business would be at a significant disadvantage.
Lord Henley
I ask the noble Baroness to refrain from intervening from a sedentary position. What I said is that things will be different, and what we are trying to do is make sure that things will be as good as possible in the event of there being no deal. If there is a deal, I hope we will get the right deal so that we can see continuity for all businesses as far as possible in this area.
If the noble Baroness feels that the subject should be a matter for wider debate, that is what is happening in the Chamber at this very moment on the general subject of Brexit, business and all of that. Here we are dealing with one small point relating to how we ensure, in the event of there being no deal, that the right things are in place. I leave it to the noble Baroness as to whether she wants to go back into the Chamber and give those speeches but, when she does, I hope she will refrain from trying to suggest that I said things that I did not. All I have said is that we want to ensure that we can get things right in the event of there being no deal. That is what we are discussing today.
If I may, I will continue on the question of security of supply. Continuity of existing parallel trade into the UK from other EEA states is important across several sectors, including medicine and food. The maintenance of the current position on exhaustion rights in relation to parallel imports will help to ensure the continuation of supply for such goods as medicines in a situation where there is no deal with the EU.
Lord Adonis
My Lords, paragraph 12.2 of the Explanatory Memorandum to these regulations says:
“There may be some costs to businesses parallel exporting from the UK to the EEA”,
as a result of the regulations. Can the Minister tell us what those costs might be?
Lord Henley
I cannot give a precise figure for those costs. My belief is that they are generally relatively minor, but I will write to the noble Lord with the details.
Beneficiaries include the NHS, which will continue to have the ability to maintain security and diversity of supply of medicines from the EEA, and to source medicines at the best price from within the EEA without being restricted by IP rights. As I mentioned, and as set out in the technical measures published in September last year, this fix is planned to be a temporary measure. The Government are considering options for what exhaustion regime is best for the UK in future while extensive research is under way. I stress that such an important decision should not be rushed. We will ensure that we have a robust evidence base and that full consultation with stakeholders is completed before any decision is made.
The instrument is extremely important to support the movement of goods and the supply of essential commodities such as medicines. It provides—
Lord Henley
I am going to conclude this section and then the noble Baroness may intervene. It provides clarity and legal certainty for businesses and consumers by preserving the status quo as much as possible following our exit from the EU. It is a necessary and technical fix for UK laws to prepare for our exit from the EU. I give way to the noble Baroness.
Baroness Corston
I am grateful. The Minister has just referred to consultation. Paragraph 10.1 of the Explanatory Notes merely says:
“The Intellectual Property Office has undertaken information gathering with stakeholders”—
we do not know who they are—and that:
“No formal consultation has been carried”.
Why has it not been done before?
Lord Henley
Because there are other matters that will be more important, such as getting the consultation right on what happens should there be a deal. These are no-deal regulations and we want to get them right in the event of no deal. Obviously, we will consult as the noble Baroness wishes as we seek to get the deal right in due course. I hope I have dealt with those questions and I commend the regulation to the Committee.
Lord Adonis
My Lords, before the noble Lord sits down, the question that is coming up time and again in the Grand Committee is: why was formal consultation not conducted before rather than after these regulations were made? With respect, the Minister has not given us a satisfactory answer. He said that consultation is taking place on arrangements concerning the deal, but the Government are telling the House that we may have to enter into a no-deal situation in two months’ time, so how can he say that it is more important to consult on arrangements concerning the deal than on no deal? How can he regard that as a satisfactory point to make to the Grand Committee, when we are being asked this afternoon to consider arrangements for no deal? It leads me and other noble Lords to think that we are not in a position to scrutinise these regulations at all if there has been no consultation nor the ability by the noble Lord to tell us who has been informally consulted by the Intellectual Property Office.
Lord Warner
Before the Minister rises to answer that, I want to put a proposition to him. He gave me a rollicking earlier for talking about my conversation with the Intellectual Property Office in relation to the second lot of regulations, but what it said is relevant to the point made by the noble Lord, Lord Adonis, which is that there was so much security around these “consultations” or discussions—no doubt the concerns about security came from a political direction—that it was difficult for civil servants to have a formal consultation on these regulations. Can the Minister own up to whether that is true?
Lord Henley
Again and with all due respect, I think that the noble Lord is possibly misinterpreting what I said.
Lord Henley
What I am trying to deal with is the question about how we get a no deal. If there is to be no deal, we want businesses to be in as similar a position to their present one as is possible. I can speak only for the orders that I am dealing with today and tomorrow, but I imagine this will be true of a whole raft of orders coming from other departments. What we are trying to do is put those businesses in a position whereby they can cope as far as is possible with no deal. Meanwhile, as part of the ongoing, sensitive negotiations over the withdrawal agreement—and on this I can assure all noble Lords there will be consultation until the cows come home—we will try to make sure that all these matters can be dealt with. I give an assurance that the IPO has engaged with legal and business stakeholders as far as possible on the drafting of this statutory instrument and what it achieves, and will continue to do so on anything that is needed in the event of a deal—because in the event of a deal, I imagine we will be here again. I look forward to debating these matters with the noble Lords, Lord Warner and Lord Adonis, the noble Baroness, Lady Kingsmill, and others so that we can get it right.
These regulations relate to the no-deal option. We are trying to ensure that in the event of no deal, as with the technical notices we have put out, businesses know what the position will be. Obviously it will be slightly different from where we are at present. That is the inevitable result of no deal. But no deal is still on the table, and until we know that my right honourable friend’s deal has been accepted by another place, I am not in a position to go any further: that is why we want to prepare for the no deal.
Baroness Bowles of Berkhamsted (LD)
My Lords, I did not come to Grand Committee today expecting to speak on intellectual property. I am here to do financial services but, since I spent the best part of 40 years as a European patent attorney, it is hard not to intervene a little. I remember very well from when I started my training the famous Wella case on exhaustion of rights and parallel imports from the US, and what would happen when we had the single market and exhaustion of rights within the EU. It was a very complicated subject, a wonderful training ground and, I am sure, a huge earner for the lawyers who dealt with it. As patent attorneys, we tended to stay out of things.
Lord Adonis
My Lords, I thank the noble Baroness for giving way. Could she explain to the Grand Committee—some of us are not familiar with all the details of this—what parallel exporting is and where the additional costs referred to in the Explanatory Memorandum are likely to arise in a no-deal situation?
Baroness Bowles of Berkhamsted
The issue is where something has come from. You could export it under the terms of a licence, but you might have got it from some third country. In the Wella case, it was the US. It became very difficult to determine where the precise shampoo in question had come from and whether it had originated under a legitimate licence or in the US. It could become very difficult to tell when people took off the labels that said where it had come from. Those were the kinds of issues, and I can see that maybe BEIS is trying to avoid replication of some of that vis-à-vis the EEA.
However, the issue of symmetry and asymmetry—which I think is what the noble Baroness, Lady Kingsmill, is referring to—comes up time and again. As a member of Secondary Legislation Scrutiny (Sub-Committee A), I have seen it in, I guess, half the statutory instruments that have come before us. Sometimes you take the symmetrical option, which means you close things down. Where you think the EU’s logical approach will be to close down on it, we close down on it. Then there are asymmetrical cases—which I think this is, and which I think I have seen more of from BEIS—where priority has been given to continuity. The result is that businesses can benefit from knowing where they stand, at least from the UK side, but it may lead to a competitive disadvantage if their exports are not similarly protected. That is an issue.
I wonder why we have a single shot at correcting it in the event of no deal. You could have said that continuity of supply—especially of drugs and so forth—at the point of Brexit is important, and so you will make some provisional means for trade to continue. Then at some point you will have to analyse it and close it down. I have been reading it only very quickly here, but that does not seem to be the approach taken. It looks as if a single shot is fixed in our legislation now, and I think it would give businesses cause for concern. I would have been happier to see some kind of temporary provision put in there, maybe with a sunset clause after three years, by which time we could have sorted things out. Then it would come back in another statutory instrument or in primary legislation for us to say: “Well, okay, what are we going to do? What has the EU done? Have we got some kind of arrangement with them within that three years?” Or are we going to say, “Now we understand a bit better how things have sorted themselves out, we’re going to go for the symmetrical option, not the asymmetrical option”?
I am sure that it is possible within the powers that the Government have given themselves in primary legislation for them to come back and do that, but it would have made things clearer for business and others to have that message put out there in advance, partly to get negotiations going if those were necessary and partly to say, “This is something that you all need to be thinking about”. I would be interested to hear from the Minister how in this instance such arguments have panned out—what has been said on one side, what has been said on the other and whether something is already up the Government’s sleeve to say, “Well, actually, we’ve thought about this and we are going to be coming back in three years’ time”. It would be reassuring to hear that even if in the long term we ended up deciding that it was best to stay with the way this has been adapted now.
Lord Adonis
My Lords, with great consideration, the Minister took a number of interventions on his speech and covered quite a number of points. However, a lot of issues are raised by the Explanatory Memorandum and the Commission note of 6 September 2017, which is the position paper on intellectual property rights, including geographical indications, and which the Treasury made available to me for this debate. I want to press the Minister on a number of points.
The section on the general principles under which intellectual property will be handled in a no-deal scenario, on pages 2, 3 and 4 of the note, all the way through uses “should” rather than “will” in respect of the mutual recognition and enforceability of rights. Perhaps I may go through them because these are all very important points. Under the first general principle, which is intellectual property rights having unitary character within the European Union, the paper states:
“The holder of any intellectual property right having unitary character within the Union and granted before the withdrawal date should, after that date, be recognised as the holder of an enforceable intellectual property right … In the specific case of protected geographical indications, protected designations of origin and other protected terms in relation to agricultural products … this principle should also imply that the United Kingdom puts in place, as of the withdrawal date, the necessary domestic legislation … The implementation of this principle should include, in particular, the automatic recognition of an intellectual property right in the United Kingdom on the basis of the existing intellectual property right having unitary character within the Union”.
Under the second general principle, it states:
“Applications for intellectual property rights having unitary character within the Union … should be entitled to keep the benefit of any priority date in respect of such pending application”,
and that, in respect of applications for supplementary protection certificates for an extension of their duration,
“a person should continue to be entitled to obtain in the United Kingdom a supplementary protection”.
This carries on in respect of a whole number of further rights. The Grand Committee and the House would obviously wish to be assured that those rights will continue, but my understanding is that whether they will crucially depends on what our EU partners do in respect of those rights if we leave with no deal. In respect of all these reciprocal rights and their enforceability, I completely understand that the Government are putting in place the necessary changes to UK law for us to do our part to ensure that rights are enforceable and recognised, but where the EU paper uses “should” in respect of all these rights, can the Minister tell us what is likely to happen after the end of May? What situation does he believe will apply if we leave the European Union without a deal?
I am not an expert like the noble Baroness, Lady Bowles, who may indeed be able to give a view on this, but it seems that we have no control over that at all, and that, crucially and solely, that depends upon the action of the European Union itself. These aspirations—which are set out in the Commission paper of 6 September and in the statements the Minister has made to the Committee about there not being an interruption in the recognition and enforceability of these rights—absolutely crucially depend on what the European Union does after the end of March, not just on what we do. Therefore, a vital issue for the Grand Committee and for the House when it discusses these regulations is to know what we expect the European Union to do. If in fact we have no reason to believe that the European Union will continue to play ball in the mutual recognition of these rights and their enforceability, do not all the concerns that my noble friend Lady Kingsmill raised apply in spades? It does not matter whether we agree to all these regulations and do everything that the Government want; all that could be superseded by an inability to have these rights enforced or recognised because the European Union itself will not undertake to do so after the end of March.
Lord Tyler
I wonder whether the noble Lord has been paying particular attention to Part 2 of the Explanatory Memorandum, which refers to a number of statements made by the then Minister of State for Universities, Science, Research and Innovation, Sam Gyimah. These statements are intended to reassure the Grand Committee and your Lordships’ House in precisely the sort of terms that the Minister is now referring to. I wonder whether the present Minister takes the same view as the previous Minister, or indeed whether the previous Minister has changed his view. To make the statement at paragraph 2.1:
“In my view there are good reasons for the provisions in this instrument, and I have concluded they are a reasonable course of action”,
may well now be out of date, since we all know that that former Minister takes the view that the proposal that a no-deal solution could in any way be appropriate for our country is absolutely absurd. Should there not have been an updating of this note so that the Grand Committee could at least be informed about the current view of the current Minister? I suspect that the previous Minister now takes a different view.
Lord Adonis
The noble Lord makes an extremely important point, and not just in respect of paragraph 2.1. I have before me the whole of Part 2, which has a whole series of statements made by the Minister of State for Universities, Science, Research and Innovation, Sam Gyimah, to the effect that in his view,
“the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018 does no more than is appropriate”.
But, as the noble Lord says, that Minister is no longer in office, so it would be appropriate for the noble Lord, Lord Henley, to tell us whether the new Minister for Universities, Science, Research and Innovation also subscribes to those statements. I should also point out to the Grand Committee that Sam Gyimah is no longer the Minister of State for Universities, Science, Research and Innovation precisely because he resigned in protest at both the Prime Minister’s existing deal and the possibility of the Government contemplating no deal.
Not only has there been no consultation on these regulations; the Minister is not even able to tell us whom the Intellectual Property Office spoke to. At the moment, the only person we know the office has spoken to so far is my noble friend Lord Warner—because he phoned it. The Minister was not able to tell us of anyone else who had been spoken to. He told us that, in an inversion of all the established practices, the consultation on these regulations will take place after they have been approved by the House, not before. The Minister who said that these regulations are proportionate and appropriate has resigned. He resigned specifically because he is not prepared to proceed with Brexit or contemplate no deal. There has been no formal consultation with any other partners. The Government cannot tell the Committee who has been informally approached.
We have no statement from the existing Minister of State for Universities, Science, Research and Innovation that these regulations continue to meet the requirements of the EU withdrawal Act. I would be perfectly happy for the Committee to adjourn while we ask Sam Gyimah whether it is still his opinion that these regulations are proportionate and appropriate. I suspect that it is not, given the statements he has made in the media over the last 24 hours about the huge risks, dangers and costs to the country of Brexit, and a no-deal Brexit in particular. It is a no-deal Brexit that the Government are asking the Committee to approve this afternoon.
The other vital point is that, not only do we have good reason to believe that the business community is worried about these regulations and concerned about the costs, but the relevant Ministers no longer even subscribe to the views they gave when the regulations were being drafted. However, we do now have the benefit of the view of the House of Commons on no deal. Last Tuesday, before we considered these regulations, the House of Commons, for the first time, specifically debated and voted on the issue of no deal. In its amendment to the Finance (No. 3) Bill, it rejected the contemplation of no deal by 303 votes to 296. That is not only a majority of seven against no deal; it was one of the largest votes the House of Commons has conducted on Brexit in any respect. The Grand Committee has good reason to believe that these regulations are being brought forward in defiance of the will of the House of Commons, because that House has said that it is not prepared to contemplate no deal.
In the briefing for her speech today, the Prime Minister said that she now thinks that no Brexit is a bigger risk than no deal. I am perfectly prepared to take that risk; some of us think it is well worth taking. Indeed, we are trying to encourage the Government to enter the supremely risky and dangerous territory of no Brexit. We know how risky it is; we do not need to conduct impact assessments because we are in it at the moment and it is a perfectly tolerable state of affairs. The Government describe it as a risk but, in the last 24 hours, the Prime Minister told us that the risk of no deal is declining. That is the Prime Minister’s judgment, and the House of Commons voted only six days ago, by 302 votes to 296, not to have no deal. We have had no consultation whatsoever on these regulations. In the debate on the no-deal proposition last week, the Exchequer Secretary to the Treasury, Robert Jenrick, said:
“As I made clear, the Government do not want or expect a no-deal scenario”.—[Official Report, Commons, 8/1/19; col. 269.]
If the Government do not want or expect a no-deal scenario, it is wholly within their power to rule one out. The Minister, who is an extremely distinguished and effective member of the Government, could make a contribution to that cause today by withdrawing these regulations in response to what appears to be the overwhelming opinion of the Grand Committee.
Lord Clement-Jones (LD)
It looks like we are on, my Lords. There is a great deal that one could say about the way in which the need arises for this SI and indeed for the others in this series. Today my noble friend Lord Tyler has called them “speculative”; last Wednesday I think he was slightly more scathing and called it a possibly wasted exercise, while the noble Lord, Lord Deben, was even more forthright, saying that we could be,
“conniving in what is manifestly a total nonsense”.—[Official Report, 09/01/18; col. 203GC.]
I have some sympathy with that statement, given that no deal, as the noble Lord, Lord Adonis, has explained, is now not the will of the House of Commons. At the same time, though, my noble friend Lord Tyler also referred to the report by the Constitution Committee, The Legislative Process: The Delegation of Powers, which made explicit reference to the critical importance of effective and timely scrutiny of Brexit-related secondary legislation. So I reluctantly accept that we still have to give it proper scrutiny in these circumstances but, whatever the merits of the statutory instruments, the least that we can do is debate them on the Floor of the House in the main Chamber, and I will be supporting that proposition if it is put later.
Each of the statutory instruments is important in itself. Even if they are only preparatory to no deal, in practice they may be indicative of longer-term government and IPO thinking, and may well be intended to take effect even if we have a deal and the transition period comes into effect. I have an enormous amount of sympathy for what my noble friend had to say about the time limitation and the need for a sunset clause, and for what the noble Baroness, Lady Kingsmill, said about it not being explicitly stated that the regulations do not come into effect if indeed there is a deal. There is a large gap in the middle of the regulations.
In the short term, these regulations are a partial solution to the problem of the UK no longer being inside what is called “Fortress Europe” for the purpose of the exhaustion of intellectual property rights. If there is no deal and the exhaustion SI comes into force on exit day, the effect is to implement, as the Minister explained, a modified version of the current regional EEA exhaustion regime. It would ensure that, post Brexit, once a product has been legitimately placed on the market in the EEA, it can continue to be resold into the UK without the rights holder preventing that. What we are doing is unilaterally allowing EU 27 goods already placed in the market there to be exported to the UK. That may be good news for parallel importers but it is not such good news for parallel exporters. It is clear from the Government’s small print that these exporters may well need to seek permission to gain entry into the EU. No wonder it has been called a one-way exhaustion regime.
What are the Government doing to mitigate the situation? It is clear—the discussion earlier elucidated this—that there has not been any formal consultation on this one-way regime. Indeed, it calls into question the statement about the lack of an impact assessment and what the Minister said in his letter about the draft regulations not changing current policy or imposing new liabilities or obligations on any relevant persons. If an exporter has to seek the consent of the rights holder on exporting into the EU 27 after a no-deal Brexit under the regime set out under these regulations, surely that will have a significant impact on that business.
Lord Stevenson of Balmacara (Lab)
My Lords, it has been a lonely journey to the heart of the intellectual property policies in this country. The noble Lord, Lord Clement-Jones, and I have been stepping together on this route for a number of years. It is really nice to see so much additional expertise brought to the table and shared with us. We have got off to a slightly ropey start, but I do not think anybody could argue that we have failed to reach the heart of the arguments now. I pay due regard particularly to the noble Baroness, Lady Bowles, who is a living legend on these matters and brings expertise from her work in previous lives, and to my noble friends Lady Kingsmill and Lord Adonis. Together with the noble Lord, Lord Clement-Jones, they have displayed the sort of expertise and knowledge we need when we address these issues.
I have only four points. I think they largely cover what my noble friend Lord Adonis, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Bowles, have said, so I will not repeat them at length. They raise issues of some substance which make me worry that the SIs in this area—this is the first of three but, as we have heard, there are more to come—are the equivalent of poking a wasps’ nest with a stick. An awful lot of rather difficult and worrying issues need to be addressed, and we have very little time to look at them. Whether there is a deal or no deal, these will not go away. They will need to be addressed, and we should think very hard about how we do so. I agree with the noble Lord, Lord Clement-Jones, that we ignore it at our peril.
A number of speakers have asked whether these draft regulations change current policy or impose new liabilities or obligations and, if so, to what extent. I listened carefully to the Minister as he got into his stride, and I do not think he really answered the question he raises for us in his letter, circulated on 7 January—I understand a copy is in the Library—which asserts that the regulations,
“do not change current policy”.
As mentioned on a number of occasions, there has been no formal consultation, some unreported discussion, no impact statement and no calculations. Yet out of this, a one-way ticket has been offered to exporters who bring intellectual property into the UK. No opportunity has been given to our fellow citizens working in the UK and producing goods they wish to export to the EU, who have no certainty that there will be any ability to benefit from parallel arrangements. This question seems not to have been answered so far by the Government and needs to be addressed properly if we are to go forward.
The noble Baroness, Lady Bowles, mentioned the asymmetry of the arrangement that the Government have come up with—absent discussion, a costing or an impact statement—and suggested that there may be more downside to this than has been said. Her suggestion of a sunset clause is a very good idea and may be something the Government should think harder about before they come back with an SI on the Floor of the House.
My third point is that made by my noble friend Lord Adonis in his careful consideration of the European Commission’s statement of September 2017. The pinning of all our hopes on a deal that may be negotiable in the future is not a satisfactory business proposition; it will send shivers down the community we are talking about here, a community of creators and intellectual property persons working in one of our most productive areas of activity, on which we pin great hope in the industrial strategy. Yet that is what it is: without any certainty on a regional basis, let alone on the international points made by the noble Lord, Lord Clement-Jones, the climate for those creative industry specialists working in intellectual property and seeking to export it seems extremely damaging. I hope that the Minister has something more to say about that.
Finally, on the legal issues, the Silhouette case comes up for all three SIs before us—it makes a good case for us considering them together, but we are not doing that. The legal issues are worrying. The legal note that I wish to refer to suggests that the basis on which this has been considered is somewhat whimsical. The argument is that it is possible that courts will not follow the Silhouette case in this area. That seems an unreasonable basis on which the Government should make regulation. If that is the case, the narrow question, raised by the noble Lord, Lord Clement-Jones, is whether the Silhouette case will necessarily become part of retained EU case law under the EU withdrawal Act 2017. We need certainty on this; if the Minister is not able to give us a clear view at this stage, I would be grateful if he could write to us on this point, because it is the key issue for those concerned.
The note says that even if the case law does fall within the definition of retained EU case law—so there is a doubt about this—it is relevant only to retained EU law which is unmodified on or after exit day. I would be grateful if that complicated idea could be unpacked, because I do not understand it. The note, which is supposed to be an explanatory memorandum for us, then says:
“Arguably”—
in other words, it is making an argument to us that it hopes we will accept,
“the retained EU law on exhaustion of rights will be materially modified on exit day, as a result of the amendments in the Exhaustion SI, because the Government is changing an EEA-wide exhaustion regime of which the UK is currently part, to a one-way”.
That makes the point that this is a one-way ticket, which is a very difficult argument to make to those affected by it. To cap it all, the unforeseen consequences listed at the end of the statement are quite horrendous:
“The UK Courts will have to follow the case law which established the principle of ‘international exhaustion’”—
a point made by the noble Lord, Lord Clement-Jones; this is a very big step away from where we are—under what is called,
“the implied licence theory in the UK”.
I suspect that lawyers listening to and reading this will be gratified to hear that a dripping roast is being created by this new SI. The document goes on to say that,
“rights-holders will not be able to prevent goods first placed on the market in a non-EEA country”,
to be brought into and resold in the UK. This was the question raised by my noble friend Lady Kingsmill, about what damage would be done to existing operators of intellectual property. The UK market could be,
“affected by cheap goods from countries where genuine goods are sold more cheaply … Consumer confusion may also arise in the UK, where genuine goods are sold under the same mark but are in fact different (e.g. toothpaste and chocolate)”—
I am sure there are many other examples. It continues:
“An international exhaustion regime is a much greater threat to UK retailers and manufacturers … In a worst case scenario intellectual property rights-holders will no longer be incentivized to produce goods for the UK because prices have been driven down”.
These are very worrying concerns for anybody who might be affected by this. I think the Government are skating on very thin ice with this issue. They have not made the case that this does not change current policy; it certainly does and it is a one-way ticket which is not satisfactory for those involved.
Lord Henley
My Lords, as always, I thank all noble Lords for their contributions, and hope I can deal with all the relevant points. As always, I will offer to write on those which I find harder to address, and hope noble Lords will be content with those letters.
I remind the Committee of exactly what we are doing. This order, since we are now dealing with them as three orders, is a result of the withdrawal Act, an Act which has been through both Houses and sets out powers precisely so that the Government could make contingency measures in the event of there being no deal. That is why we have brought forward the Intellectual Property (Exhaustion of Rights) Regulations that we are debating: to deal with that no-deal situation. As I and others have made clear on other occasions when dealing with EU exit regulations, of which there are quite a number, they are contingency measures designed to deal with the possibility that there is no deal. We expect that there will be a deal, but at this stage, in advance of debates in another place and other matters, it would be an irresponsible Government who did not make appropriate plans to deal with no deal so as to provide business with a degree of certainty.
The Government are therefore considering various options for the future. We are undertaking research and consultation on what would be the most appropriate exhaustion regime for the future, but that is for another day. We will deal with that in due course, but it is not what we are debating this afternoon. That will take time, and I do not believe there is a compelling reason to rush to an alternative system until we have seen the evidence and listened to what businesses and consumers have to say.
Lord Clement-Jones
The Minister may say that, but he has to answer the question about why the international exhaustion regime is not ruled out in the current SI, a point that both the noble Lord, Lord Stevenson, and I have raised. It is explicitly not ruled out, and that is the uncertainty contained in this SI.
Lord Henley
I do not think I can take it any further. As I have made clear to the noble Lord, this is dealing with no deal and it would be wrong to set that out in the no deal. We can now consider the various options and come forward with them in future—as the noble Lord would wish me to do—after we have considered that with appropriate businesses and consumers.
Lord Henley
I am not giving way until I have finished this sentence. As I have made clear—I think I have already said this—this is going to take time and I do not believe there is a compelling reason to rush.
Lord Clement-Jones
My Lords, without putting too fine a point on it, I am arguing that in a no-deal situation it needs to be clear that the international exhaustion regime does not apply. That is not clear. The noble Lord, Lord Stevenson, read out some legal analysis, and I have had the same analysis. The concern is that, although it is stated that the regional regime will come into effect regarding our relationship with the EU, there is no statement on any other application of an exhaustion regime. It is therefore quite possible, in the opinion of many IP lawyers, that the international exhaustion regime that existed before our membership of the EU could again come into effect, and the Silhouette case would not apply. That needs to be addressed.
Lord Henley
I will get to the Silhouette case later on. Although I will comment on it briefly, it might be that I need to write in greater detail.
Going back to the SI before us, it is clear that it maintains the status quo as far as possible. Regulation 2 ensures that the domestic exhaustion framework remains the same after exit. That delivers as far as possible a continuation of the current regional exhaustion regime. That is the legal clarity we can provide the moment. I cannot take the noble Lord any further, other than to say that we have been clear that this is a temporary fix and we will revisit it when we have gathered the evidence we need.
Lord Clement-Jones
My Lords, I have one final intervention on this point. The noble Lord can take us no further—he is effectively requiring us to make a leap of faith on this SI.
Lord Henley
No, I do not believe it is a leap of faith. It provides the clarity that business needs, in the form of a temporary fix. Thereafter—the noble Baroness, Lady Bowles, also asked about this—we will be much more able to consult fully on this instrument than was possible at this stage. At that point, we can take things further.
I will deal with one or two other points. The noble Lord, Lord Adonis, is not in his place so I do not think I need to deal with his points, but if he likes I will write to him on the question of whether “should” should be “would”, for example. The noble Lord, Lord Tyler, referred to comments made by previous Ministers. I assure him that, as always, Ministers speak with one voice and will continue to do so. Those statements reflect the view that the Government still hold.
The noble Lord, Lord Clement-Jones, asked about an impact statement and how it can be said that no impact on business is expected. An impact assessment is intended to look only at the impact of the legal instrument to which it is attached. This instrument does maintain the status quo within the UK and we therefore believe that there will be relatively little impact on business. There will, obviously, be some impact on parallel trade from the UK to the EEA and that will depend on the action of EU rights holders and, more broadly, on what the EU chooses to do on the issue of exhaustion. Those decisions are not within the scope of this instrument, so it is not possible accurately to reflect their impact in the assessment.
Lord Clement-Jones
My Lords, one could easily quarrel with that statement. The regime set up by the SI is, as described by me, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Bowles, an asymmetric or one-way exhaustion regime. How come that is not covered by an impact assessment?
Lord Henley
My Lords, I repeat what I said: this is designed, as an exit SI, to deal with leaving without a deal. We want to maintain the status quo and therefore anticipate the impact on business to be relatively small. I will complete what I am going to say before I take interventions.
Lord Henley
I am not giving way to the noble Lord until I have finished my point. I have a right to make this speech in my own manner. I will then give way to the noble Lord and to the noble Lord, Lord Stevenson.
I accept that there could be some impact on parallel trade from the UK to the EEA. That will depend on the actions of the EU rights holders and, more broadly, on what the EU chooses to do on the issue of exhaustion. Those decisions are not within the scope of this instrument, so it is not possible accurately to reflect those impacts in the assessment. I now give way to the noble Lord, Lord Warner.
Lord Warner
I am grateful to the Minister. I have listened to this for about an hour and he keeps using the same arguments. We are going to come to these issues again on the second SI. If I give him some notice, he may be able to think of some better arguments than those he has used so far. I find it almost impossible to understand what he is saying. If there has been no proper consultation with the industry, how can he say that this has minimal impact on it? That seems to be a contradiction in terms. What is the basis of the Minister’s impact assessment if there has been no formal consultation?
I come back to the point I raised earlier: were not the hands of the civil servants tied, in terms of their ability to talk to people about these issues, before this SI was formulated—a straight yes or no? Were they constrained in their discussions with the affected industries before these SIs were drawn up?
Lord Henley
My Lords, I reject any suggestion that officials have been constrained in what they can do. The point I was trying to make is that we are talking about two things. We are talking about what happens in the event of us leaving without a deal. If we do, we need to set certain things in place, which is what these regulations do. Meanwhile, we will continue to negotiate as part of the whole withdrawal process to get the right deal. We will then get the right things in place. At that point, further instruments will no doubt come before the House—I look forward to debating them—and those will follow full, frank and proper consultation with all concerned. There has been a degree of consultation on these regulations, but they deal purely with a no-deal situation.
Lord Stevenson of Balmacara
I am grateful to the noble Lord for giving way. I was going to try to be helpful, although he may not welcome the intervention. When we have had similar discussions on SIs and similar confusion and annoyance have been expressed on all sides about the fact that consultation has not been done in the usual manner and statements have not been provided, the Government have used the argument—the noble Lord did not use it on this occasion—that the de minimis provision is that the department has made an estimate, which is presumably accepted by Ministers, that the burden of the costs that will fall on the industries affected by the SI is less than £5 million. Is that the case with this arrangement—yes or no?
Lord Henley
I cannot remember whether that is the case with this set of regulations, but the noble Lord is right that, obviously, we do not consult on SIs with an impact of that order. My understanding is that he is correct, in that there is little or no impact in the case of these regulations. That is why most businesses to which I have spoken are broadly in favour of the regional exhaustion regime.
Lord Clement-Jones
My Lords, although the Minister has characterised these regulations as simply putting in place the status quo, he will recognise that business will not consider this the status quo. That is entirely the reason behind the argument that an impact assessment should have been done and that proper consultation should have been carried out.
Lord Henley
I accept that the noble Lord is right that business would consider a no-deal situation to have major implications. In relation to this issue, I believe that what we have set out in our no-deal regulations will have very little impact. That is the type of clarity that we are trying to give business.
Baroness Bowles of Berkhamsted
The point about the impact assessment concerns me. The noble Lord, Lord Bates, who is eagerly awaiting our later exchanges, knows that I have been here before. Forgive me if I am paraphrasing the Minister, but what seems to have been said is that, when the impact assessments are done, they relate to the impact of the legal instrument. That impact is often deemed to be relatively minimal. However, if you deal with the consequences on business of the legal instrument, the impact is much larger. I always thought that the whole point of impact assessments was that they dealt with the predictable consequences. The regulations that we are dealing with may be simple to understand, because there is not anything for business to do, but their impact means that businesses may have to compete on an unlevel playing field. There is a direct consequence of the legal instrument but that would appear to be excluded. That does not really seem to be the right way in which to measure it.
Maybe as a relative newcomer, I cannot start saying, “You’ve got to do your impact assessments differently”, but this issue needs to be looked at in the round because it can be used in a completely disingenuous way. I know it has been churned out this way under pressure, but this could continue throughout every statutory instrument, whether it is to do with Brexit or not. It is a laughing stock, really. I think about how some MEPs used to criticise EU impact assessments, but I never found anything that was just to do with the assessment of the legal instrument; they always dealt with consequences. So why do ours not?
Lord Henley
I am not sure I can take the noble Baroness and noble Lords any further on this point, other than to remind them what the regulations do. They relate to the no-deal situation and to ensuring a degree of certainty, which all businesses would like, in that eventuality. I leave it at that.
Baroness Kingsmill
Before the Minister moves on, I would like to say that the whole—
Lord Henley
I have not given way yet. If the noble Baroness will wait for me, I will now give way to her.
Baroness Kingsmill
My point is that the whole situation seems to be pretty hypothetical. We are trying to consider what the regulations should be in the event of a no-deal situation, but we do not think there is going to be a no-deal situation. We are also trying to assess the impact of this hypothetical situation without having adequate consultation with those very businesses on which it is going to have an impact. It seems as if we are in Alice in Wonderland, sitting here discussing hypothetical situations. I recognise that the Minister is in difficulties on this point, and it is very hard to be on the Front Bench when you are having to defend hypothetical situations, but the drift of the matter is that we are really wasting everyone’s time, are we not?
Lord Henley
I do not accept that. What we are trying to do by passing no-deal regulations is to ensure a degree of certainty for the businesses we are talking about. That is why we are dealing with the hypothetical situation, and I am perfectly happy to do that. I am also happy to say that I think it unlikely that there will be no deal, but the noble Baroness and others would think we were being irresponsible if we did not prepare for the eventuality of no deal. That is all we are doing.
I move on to a further question raised by the noble Lord, Lord Clement-Jones, on the exhaustion of rights and whether we should agree to the proposal when British businesses cannot export parallel goods to the EEA. Again, there may be restrictions on the parallel export of goods from the UK to the EEA, and the noble Lord is quite right to point out that that is a consequence of leaving the EU. However, businesses wishing to parallel export goods to the EU will have to check with rights holders whether they need permission so to do. The SI seeks to provide a continuation of the status quo most closely, and would likely therefore have the least economic impact while, as I said earlier, the Government consider the impact of any future change.
I turn to the Silhouette case. We are talking about a ruling from the Court of Justice of the European Union, and it may be that I need to write in greater detail on this subject. That ruling from the CJEU is required to implement a regional exhaustion regime, but there are unclarities—if I may put it that way—as to when the Silhouette case will become retained EU case law under the withdrawal Act. EU case law before exit will continue to apply to the interpretation of EU-derived domestic law after exit under the withdrawal Act. EU case law before exit relating to the effect of this law will, obviously, continue under Section 6(3) of the withdrawal Act. Again, with these SIs, we provide the legal clarity that is needed. However, because anything that comes from the Court of Justice of the European Union frequently requires a little extra clarity, if the noble Lord will bear with me, I would prefer to write in greater detail to him on the Silhouette case in dealing with those points.
Lord Clement-Jones
My Lords, I accept the Minister’s offer, because that was quite a confusing response. Precisely because a no deal is envisaged, there is the question of whether CJEU case law will continue—whatever we say about it—with regard to other exhaustion regimes which may or may not spring up. It would therefore be useful to get a letter from the Minister after this SI has been debated.
Lord Henley
My legal eagles will be hard at work on producing just such a letter for the noble Lord, and I hope it will provide him with a degree of clarity—to the extent that that can be provided.
The noble Lord also asked about our plans for IP in the future relationship. As we made clear in the White Paper, arrangements on future co-operation on IP would provide important protections for rights holders, giving them confidence and a secure basis from which to operate in and between the UK and the EU. As part of this, the UK will seek to remain within the unitary patent system and the unified patent court. The political declaration states that as part of the future framework, the UK and EU should provide for,
“the protection and enforcement of intellectual property rights to stimulate innovation, creativity and economic activity”,
and co-operate on areas of mutual interest. Obviously, the specifics of that will be a matter for detailed negotiations on the future partnership.
The noble Lord also asked about provisions concerning designs and international systems for trademark and design protection. The instrument before us today focuses on trademarks, specifically EU trademarks and domestic trademarks derived from EU legislation. An instrument setting out our intentions for continued protection of unregistered community designs and international trademark and design rights will be laid in due course. The noble Lord mentioned the draft SI on copyright, and I can give an assurance that we are working hard on the instrument and will bring it forward as soon as possible.
Lord Clement-Jones
My Lords, can the Minister confirm that they will be no-deal SIs on the same basis as the other three SIs being put forward today?
Lord Henley
If it is necessary that there be no-deal SIs, then yes, there will be a no-deal SI. I am advised that that is the case, so there will be scope for the noble Lord to have another debate on this issue. I look forward very much to that happening. Whether my noble friend Lord Bates looks forward to that is another matter, but he has other matters to deal with.
Finally, the noble Lord, Lord Stevenson, asked about the practical benefits that this SI proposes: why should we agree to this proposal when the EU could get flooded with parallel imports from the EEA? The approach simply ensures that what happens currently will continue after exit day, and allows for IP-protected goods in the secondary markets to continue to be imported from the EU, including medicines. This will ensure continued consumer confidence and resilience of the supply of goods into the UK. That will be the continuation of the current situation; there is no reason to anticipate any increase in parallel traded goods after exit.
I hope I have dealt with all the points that I tried to deal with; I have also given an assurance that I will write on other matters. I beg to move.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, it might be helpful, as this is the first instrument that the Committee has considered this afternoon, if I remind the Committee that the Motion is to consider the draft instrument and that it will be the subject of an approval Motion before the House in any event, whatever the decision of the Grand Committee. I also remind the Committee that a single voice of not content will negative the Motion.
The Question is that this Motion be agreed to. As many as are of that opinion will say “Content”; to the contrary “Not content”.
Patents (Amendment) (EU Exit) Regulations 2018
(5 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Henley
That the Grand Committee do consider the Patents (Amendment) (EU Exit) Regulations 2018.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)
My Lords, I beg to move that the Committee considers the draft Patents (Amendment) (EU Exit) Regulations 2018, which were laid before the House on 28 November.
Intellectual property plays a vital role in the UK’s knowledge economy, and this will continue to be the case after our departure from the European Union. Ensuring strong and balanced IP protection and enforcement is central to the Government’s aim of encouraging businesses to innovate and develop new ideas and technologies, which forms part of the industrial strategy. Our IP system is consistently rated one of the best in the world.
Lord Adonis (Lab)
I am very grateful to the Minister for giving way. Can he tell us—the same issue came up with the previous regulation—what consultation there has been on the regulation?
Lord Henley
I will answer that in due course. The noble Lord will have an opportunity to speak after my speech, and we might make better progress if I take it in that manner.
The regulations are part of the work being delivered by the Intellectual Property Office to ensure that the IP system for the UK continues to function effectively in the event of no deal being agreed when we leave the EU in March. This is essential to ensure a smooth transition for business and provide maximum certainty and clarity.
The draft instrument before the Committee today uses the powers provided by the European Union (Withdrawal) Act 2018 to address deficiencies in UK patent law which would arise on exit. The majority of UK patent law is domestic in origin or derived from various international agreements, so will not be affected by leaving the EU. Only a few specific areas of patent law are governed by EU legislation, and it is those areas which the draft instrument is intended to address.
I shall focus in particular on supplementary protection certificates, which are a special type of IP rights connected with patents. Noble Lords may recall that SPCs were created in the 1990s by way of EU legislation to deal with a growing issue affecting pharmaceutical and agrochemical products. Before such products can be made available on the market, the regulatory body must be satisfied that they are safe for use in order to authorise them for sale. As this process is extensive and often lengthy, it can stop the innovator enjoying the full period of exclusivity which a patent on such products normally provides. The aim of the SPC system is to limit the effect of that by providing up to five and a half years of additional protection to an authorised product after the expiry of the patents. This arrangement gives the maker of the product more time to recoup the costs involved in research and development, which is especially important in relation to pharmaceuticals.
The association representing British manufacturers in the field, the ABPI, has estimated that bringing a new drug to market costs more than £1 billion. SPCs therefore play an important role in encouraging innovators to develop new and more effective medicines by helping to cover those costs and providing additional revenue to put back into research. The framework for SPCs is set out in EU regulations 1610/96 and 469/2009 which will be retained under the withdrawal Act.
Lord Adonis
Before the noble Lord sits down, he said that he was going to cover the issue of consultation later in his remarks and he urged me not to intervene. He has not covered the issue of consultation at all. Would he care to do so now?
Lord Henley
My Lords, I did not say that and the noble Lord should not put words into my mouth. I said that when I come to respond at the end, I would deal with the point. No doubt the noble Lord would like to intervene to make the point and I have now listened to it. If the noble Lord would like to stay until the end of the debate, I will respond to it them.
Lord Adonis
My Lords, I do not think that that is a satisfactory response at all. Our consideration of this regulation, which we are just about to engage in, crucially depends on the Minister telling us what consultation has taken place. It is not good enough for him to say that he will speak at the end of the debate when we raise the issue. I have raised the issue because I wish to respond, as will other Members of the Grand Committee, to what he has to say about the consultation that has taken place.
Lord Henley
The noble Lord intervened more than once during the previous debate. I had a number of responses to give to him but sadly he did not think it necessary to stay until the end.
Lord Henley
Will the noble Lord sit down? I have not given way to him. The noble Lord can make his point when I have given way.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, it might be for the convenience of the Committee if I were to put the Question so that the debate can then continue.
Lord Adonis
My Lords, I do not think it is for the convenience of the Committee, because the noble Lord has just made a direct allegation that I was not present in my place to listen to his response. The reason is that I was speaking in the debate on the EU withdrawal agreement in the Chamber. I have made the point to the Whips, including on our side, that it is highly unsatisfactory for the debate to be taking place in the Grand Committee on regulations concerning exactly the same matters as are being debated in the Chamber. It is not possible, even for the noble Lord with his considerable abilities, to be present in two places at once. It is because I wished to participate to the debate—it is a discourtesy to the House that I am not able to be present for most of it, because I am fulfilling my duties in the Grand Committee—that I was not here. I hope the noble Lord will withdraw the remark he just made, which appeared to imply—maybe because he was not aware that I was in the Chamber—that I was not fulfilling my duties. After he has noted that I was not here because I was in the Chamber, I think he needs to answer this point to begin with. Otherwise, I will continue interrupting until he actually gives us some information on what consultation took place on this regulation—before we can properly consider it and whether we think the consultation that took place was adequate.
Lord Henley
My Lords, I quite understand that the noble Lord was in the Chamber and therefore not able to be there at the end. I merely made a statement of fact that he was not there and that therefore I was not able to respond to him. I similarly make the quite straightforward statement that I have spoken on this, for which I hope the noble Lord is grateful, and I will respond in due course to the points made. I hope the noble Lord will understand that the wide-scale engagement he would like, as we discussed on the earlier amendment, was not possible on a draft no-deal regulation of this sort. I can give the assurance, as I gave on the previous order—this is the important thing—that there will be a proper consultation in the future. The noble Lord should bear in mind that at the moment we are making sure there is a degree of certainty for businesses in the eventuality that there is no deal.
Lord Henley
No; there is no need for noble Lords to get up. I will sit down and give way to the noble Baroness or the noble Lord when I am ready, but I am entitled to speak and give way as I wish.
We will consult as appropriate on whatever the future regime might be, deal or no deal. We are trying to get things right in the eventuality of there being no deal. It is quite right—
Lord Henley
Can the noble Baroness wait just a moment? I am still speaking. It is quite right that we make appropriate contingency plans. I now give way to the noble Baroness, then I will no doubt give way to the noble Lord, Lord Warner, who is itching to get to his feet.
Baroness Kingsmill
I was actually trying to be a little helpful. In the notes on this matter, there is a little more detail about the consultation than on the previous one. They say a consultation was taken with “informal discussions”—informal is always questionable—
“with a small group of selected individuals with expertise in the relevant areas, or in patent law generally”.
I read that to suggest that the consultation was with lawyers, as opposed to people directly affected by this. I wonder if the Minister could make that clear. If it is with lawyers, they will be looking at it on the basis of the law as opposed to the impact on businesses. Once the Minister has clarified who and what it was, I could then understand the impact. In paragraph 12, the Government assert that there is,
“no, or no significant, impact on business”.
If there has been a proper consultation, that is fine and perhaps one has to accept that impact. But at present an informal discussion,
“with a small group of selected individuals”,
does not sound to me like the kind of consultation that is going to give anybody the possibility of saying there is,
“no, or no significant, impact on business”.
Perhaps the Minister would care to clarify.
Lord Warner
May I intervene to be helpful to the Minister? He might wish to consider withholding his remarks about consultation until he has heard what I have to say a little later about the consultation process—if we may venerate it with such a description. I think he might want to hear those before he commits himself too far on what consultation has taken place.
Lord Henley
The noble Baroness, Lady Kingsmill, suggested that it was only lawyers who were consulted. There is nothing wrong with lawyers—I speak as one myself—but others were involved too, including a number of business stakeholders, a representative from the BioIndustry Association and other representatives from the pharmaceutical and generic industries. I imagine this will be confirmed by the noble Lord, Lord Warner, when he speaks; I am looking forward to his remarks. All I can say is that that has happened, but obviously the consultations will continue so as to ensure we get the right process for the future, deal or no deal. At the moment we are dealing just with contingency planning should there not be a deal. I think I have moved, and I think I have now sat down.
The Deputy Chairman of Committees: The Question is, that the Grand Committee do consider the draft Patents (Amendment) (EU Exit) Regulations 2018.
Lord Warner
My Lords, I hope to throw a little light on the subject of consultation during the course of my remarks, which I am afraid will be slightly lengthy. My remarks are based upon a briefing I have received from the BioIndustry Association They relate to its concerns about both the impact and the process by which these regulations were drawn up and consulted upon. Again, I use the term “consulted” in a very loose way.
Before I get down to the business of what the BIA’s concerns are, I want to make a couple of general remarks which came out of our debates in Grand Committee last week about the previous set of regulations, and out of our discussions this afternoon about the first set of regulations. They are two issues which we keep coming back to time and time again. I hope that, for the rest of the proceedings, the Minister might refrain from continuing to run the argument that these documents do not reflect any change of policy. I shall set out the arguments as to why there is a change of policy here. Last week there was a set of policy changes in the regulations that were produced. I understand why there may have been a change of policy, given the circumstances in which these regulations were pursued, but it would be helpful to informed debate for the Government to stop saying that there is no change of policy because there palpably is a change of policy in many of these sets of regulations.
That is request number one to the Minister. The second concerns the Minister saying that somehow these regulations were only hypothetical and relate to a set of circumstances which may not occur. We raised this last week when he was not here and we were dealing with another Minister. The truth is that this is a set of regulations the Government of the day have drawn up and put in the public arena, and they have an impact on the people who may or may not be affected by them. As I said last week, as an ex-civil servant I know that even if these regulations are not used for the purposes for which they have been drawn up, they will be tucked away in a Whitehall cupboard. That is the reality. If we get down to some of these issues subsequent to Brexit day, they will still be there, they will still be a resource which will be drawn upon, and I would be willing to bet a large sum of money that they will be used to some extent in drafting another set of regulations.
The point that we have been trying to make to Ministers, singularly unsuccessfully, is that there are concerns about how they may be used and how the outside world may interpret the Government’s attitude in these areas in the future. That is why it is very important to challenge the Government when there are defects both in the assessment of impacts and in the inadequacy of the consultation process.
Lord Adonis
My Lords, in the light of what the noble Lord has said, does he not think it extraordinary that paragraph 12.3 of the Explanatory Memorandum says:
“An Impact Assessment has not been prepared for this instrument because … it is designed to maintain the status quo”,
when the point that he is making very powerfully is that the regulation does not maintain the status quo since it envisages a no-deal scenario that, for the industries and businesses affected, is anything but the status quo?
Lord Warner
I totally agree with the noble Lord and will set out my reasons for doing so in relation to this particular set of regulations. The concerns that the BIA has about this set of regulations relate to paragraph 55, which is all about the number and date of the earliest of any EEA authorisations which lead to the granting of a UK authorisation. The effect of that setting of the date on the supplementary patents certificates, which are the extensions for patents of medicines that provide additional patient life, is to compensate for the period of market exclusivity lost during the essential regulatory approval process. So the market authorisation sets the date for the five-year market exclusivity arrangements that apply to medicines.
This starts to get a bit complicated so I will keep to the wording of my brief. The SPCs can provide up to five years of extra protection, and the precise period of the additional protection is determined using the first regulatory marketing authorisation date currently within the EEA. The amendment to which I have drawn attention, which is set out on page nine of the regulations, would maintain this EEA-wide stipulation for UK supplementary patent certificates despite the medicine covered by the SPC being subject only to a UK market authorisation—that is, it could not be marketed in the UK until approval by the UK-based MHRA. This would have the SPC’s duration aligned with those granted elsewhere in Europe on the basis of first authorisation in the EEA even if the UK authorisation was much later.
In so far as one understands why the Government are doing it this way, it appears that they are seeking to encourage life sciences companies to launch medicines in the UK at the same time as they launch them in the EU/EEA. The BIA fully understands what the intention is; it just does not agree that it will have the effect that the Government think it will. The BIA says that in reality many of its member companies are saying that the regulation is more likely to delay further the launch of a medicine in the UK and is adversely affecting the global reputation of the UK as a location for the life sciences industry.
Lord Deben (Con)
Is not the point that the noble Lord is making rather wider than that? He seems to be saying that if either the Government or the body to which he refers are right, this regulation changes the position in which we are. In other words, we do not need to argue whether it would have this effect in one direction or the other; all that we need to argue, to make the point that I think we are all trying to make, is that it is just not good enough to say, “This regulation doesn’t change the situation”. It manifestly changes the situation whether the Government are right or the BIA is right.
Lord Warner
The noble Lord is spot on. That is exactly the point that I am making. I want to develop the argument a bit more and relate it to the problems around consultation, or the lack of adequate consultation. I have a lot of respect for the BIA, particularly following my time as a health Minister when I had a lot of contact with it. It is not an excitable group of people who write and complain to the Government at the drop of a hat but a responsible trade body that any Government of any complexion would do well to take notice of. Moreover, the BIA is concerned about the lack of process and consultation on a regulation that will have a huge impact on its sector and on NHS patients:
“A strong intellectual property framework is essential if the UK wishes to have long-term sustained investment in R&D, remain a globally-attractive location for international investment and grow UK companies in the UK”.
I think we are all agreed that those are desirable things. However:
“Due to other regulatory requirements in the event of ‘no deal’, the exclusivity term for a medicine in the UK would be reduced as a result of the Article 3 amendment”,
in these sets of regulations compared to the rest of the EU. The threat of,
“a shortened data exclusivity period has adversely impacted global companies’ views of the UK”.
Companies have told the BIA—here I will quote what they have actually told the BIA—that a product will,
“never be launched in the UK before the EU”.
The UK,
“has moved further down the priority launch market”—
one company has told the BIA that the UK has moved from the first tier to the third-tier launch market for upcoming new products—and that the international reputation of the UK as a place for global pharmaceutical companies to undertake business has been damaged at the very time Brexit is already having an adverse impact on the UK’s global reputation. These are the points that a very responsible trade body is making about this specific set of regulations.
Lord Adonis
My Lords, I think the noble Lord is making a case which is of great concern to the Grand Committee, not least because of the impact on jobs and investment. Can the noble Lord, with his knowledge of this sector over many years, give the Grand Committee some indication of what he thinks the impact might be on investment in the UK in the pharmaceutical sector if the scenario he is envisaging and these no-deal regulations were to take effect?
Lord Warner
According to the BIA, which is a cautious body that keeps its finger on the pulse of the sector very well and in my experience always represents that sector extremely accurately, it is concerned about the impact of this approach on patients’ access to new medicines and the effect on jobs of a decline in using the UK for the growth of innovative products in the bioindustry sector. It says:
“Eroding intellectual property protection whilst also seeking global free trade deals sends a signal to industry that the UK Government may further erode protection as it seeks to quickly conclude deals. This would further impact the industry in the UK and future inward foreign investment”.
That is what the industry is saying, it is not what I am saying. I am repeating to the Grand Committee what the sector and the industry are saying, having been involved in this set of regulations. The BIA and the industry are also concerned that the proposal has simply not been properly consulted on:
“The suggestion that the government might take this approach first appeared in a Technical Notice at the end of August”,
2018. The BIA,
“raised concerns with Ministers and the MHRA. The MHRA stated that concerns should be included in responses to their ‘no deal’ consultation which concluded on 1 November (the consultation did not ask specifically about exclusivity)”.
So the Government did not actually consult on the point of exclusivity. That is the view of the trade body which is responsible in this area. This is why I urged a bit of caution on the reassurances that the Minister might want to give until after I had spoken. This is what the industry is saying. The statutory instrument,
“was tabled on 1 December, when follow-up discussions from the consultation were still ongoing. There has been no formal consultation”,
on this issue, which undermines the validity of the regulations.
The sector is saying that it was not consulted on the specific items in the regulations and that is as a result of its contact with the MHRA, the regulator.
In its response to the MHRA no-deal consultations, the BIA, together with the ABPI, stated:
“We are also concerned that the proposal for data and market exclusivity for marketing authorisations is not being consulted on”.
It has made that clear beyond peradventure. I do not know who the IPO spoke to. It may have been one individual company—that is what my intelligence from the BIA suggests. By any stretch of the imagination, it was simply not a proper consultation with the sector that is most affected and which is genuinely concerned that the regulations will have a massive adverse effect on the life sciences industry in this country.
In its response to the consultation, the MHRA stated on 3 January that there would be a review within two years. However, by that time some UK patients will not be able to receive the medicines that they would have if the UK was a member of the EU and there will have been a significant impact on the UK industry as well as on the global industry’s perception of the UK. This is what a responsible trade body is saying has been the effect—
Lord Warner
I am sorry if I am taking up a bit of time. I have heard longer speeches and I have been interrupted a few times.
Lord Adonis
My Lords, I have rarely heard in Grand Committee a speech of greater concern to a major industrial sector and to patients, so I hope that the noble Lord will in no way be influenced by Government Whips telling him to curtail his remarks when those remarks are of such importance to the country.
Lord Warner
I am grateful to the noble Lord for his support. I have never been much of a one for taking notice of my own party’s Whips let alone the Government Whips.
The Minister should pause these regulations and conduct a proper consultation before taking them forward. The Government should delay the process until they have heard what the industry has to say about the impact of these regulations on the UK life sciences sector.
Lord Deben
My Lords, I am concerned about the consultation element. I am interested in the difference between the wording in this SI and the one that we are going to discuss later. This one says that,
“the Intellectual Property Office held informal discussions with a small group of selected individuals”.
The one that we are going to discuss later says that,
“the Intellectual Property Office held informal discussions with a small group of trusted individuals”.
Does this mean that the selected individuals are not trusted or that the trusted individuals are not selected? This seems like careless drafting, which reveals the fact that there was no proper consultation of any kind.
I say to my noble friend that it is not acceptable to talk about consultation if one of the major bodies concerned was not consulted. It is also not acceptable to talk about consultation when it is informal with selected groups. I run a business and one thing it does is give advice to people. If I said that my advice was based upon a series of people whom I had selected informally, that advice would not be well thought of. I have to say: “These are the people that I have chosen, in order that they should be a broad range, covering all the issues we are dealing with”. I do not select them on any other basis. If my noble friend does not explain on what basis these people were selected, he has to accept that all sides of the House will be other than certain whether it was on the basis of coverage rather than support.
Baroness Kingsmill
I take the noble Lord’s point entirely. However, having pointed out the inadequacy of the consultation programme, it also throws into complete disrepute the idea that there was no, or no significant, impact on business or the public sector and they have therefore not bothered to make an impact assessment. When the consultation process has been so manifestly inadequate, it is impossible to say that there has been no impact.
Lord Deben
The noble Baroness makes an important point. I want to follow this line because if the consultation itself does not cover the industry, and those others whom you would expect to be covered, it is not likely that the Grand Committee can reasonably expect to accept the concept that there is no effect or problem. We can only do that if we are sure that the consultation has been widespread, properly chosen and the rest. Will my noble friend explain who was consulted with, why some people who are obviously necessary consultees were not consulted, on what basis that choice was made and why these were informal discussions? This is surely a very important SI and there should have been formal discussions.
Secondly, there is a problem in all these SIs which we have to remind the Minister of each time. It is suggested that we can allow these SIs to go through because they are very unlikely actually to be used, because they are based on the principle of a no-deal exit from the European Union. That may be true, but it does not excuse us from ensuring that the SIs are as good as they could be. They might be used, unless the Minister is going to say that they are not going to be. At the moment, they could be used and we have to apply the same intellectual rigour to these as we would to any other SIs.
Lord Adonis
The noble Lord is making a powerful point. Did he note the remark made by the Minister in the debate on the last regulation: that the reason why there had not been full and proper consultation on the regulations was because the department was so preoccupied with consulting on and framing arrangements for the Prime Minister’s deal? We are being told that the regulations which we are debating to make provision for no deal, and which the House is expected to approve, are being inadequately consulted on and—as is clear from the remarks of the noble Lord, Lord Warner—inadequately prepared precisely because the Government are so overloaded with making arrangements for the deal. If the Government’s priority is the deal, rather than a no deal, is it not right for them to withdraw these regulations, and the option of no deal? The Minister made the frank admission to the Grand Committee earlier this afternoon that the Government have not had the resources and capacity to conduct proper preparations and consultation for no deal.
Lord Deben
I do not think that I ought to follow the noble Lord down that road because otherwise there will be a complaint that one is somehow not keeping to the fact, but of course what he says is entirely true and I agree with him. However, the point is that we as a Grand Committee must not take any less notice of these SIs on the basis that they might not have to be implemented or indeed even that they probably will not have to be implemented. There are two reasons for that. One is that they could be implemented because that is what we are doing; we are making law. The second reason is the point made by the noble Lord, Lord Warner. In future, even if they were not implemented, in other contexts the fact that we had agreed to them would be used as a mechanism for suggesting that whatever is then being presented is perfectly all right because the Grand Committee of the House of Lords had been through them and they are only repeating them. That is the same kind of argument which says, “We are not actually changing anything”.
That leads me to my third point, which is simply this. If we are unhappy about the nature of the people who were consulted and if we also feel that we ought to know who they were and the circumstances in which the consultation took place, it is also true that we need to question the outcome. It is clear that those who know about it think that this particular SI changes the situation very significantly, but the suggestion is that there are no new obligations or burdens on private, public or third sector bodies and it does not require refamiliarisation—a word which I am fascinated to discover and would ask the Minister to explain what it means in order that I get a measure of it. However, if you get the consultation wrong you then get the outcome wrong and therefore you cannot say that there is no need for an impact assessment. The section on impact assessment is thus also very serious.
I direct the Grand Committee to paragraph 12.2:
“There is no, or no significant, impact on the public sector”.
The fact is that if there is no deal and this has to be implemented, there would be a huge impact on the public sector and that impact would be very expensive.
This is another point that I want to raise with my noble friend. There are no costs in this document. We are not told how much it is going to cost. The way to get around that is to say that it is not going to cost very much so, “we do not have to tell you”. However, one of the falsehoods of the whole Brexit argument is the suggestion that we are somehow going to make money out of it, whereas every time you look at any of these things, you see that the United Kingdom is setting up a system to do what historically has been done effectively on a Europe-wide basis. That all costs money and I want to know, as a Member of this House, how much it will cost. It is not acceptable that because we may not have to do it, we do not have to be told how much it will cost.
Baroness Kingsmill
Perhaps I may further the point that the noble Lord is making. We have now established pretty well that the consultation process was at best flawed but much more likely so limited as not to be taken seriously. From that has come the idea that there is no significant impact, which in turn has led to it being said that no specific action is being proposed to minimise regulatory burdens on small businesses. The weakness of the consultation process at the very beginning has worked its way through to saying, “Bad luck for small businesses”, and indeed, I might say, large businesses.
Lord Deben
That is absolutely true. It all adds up to my last point, which I feel is the most important point of all. The Government keep on talking about no impact, but of course in this SI they cover up the fundamental impact, which is that the benefit that used to be enjoyed by those to whom this applies because we were part of the European Union will be removed. That is a huge impact. When the Government talk about no impact, they are really saying that, as long as you confine your activities to the United Kingdom, there will be a little arrangement which will, roughly speaking, be the same as the arrangement that we had in the United Kingdom when we were part of the European Union. That is what we are saying.
That is an entirely different situation, because it means that we do not have the advantages which we had before. I know that that is an integral part of Brexit, and it is one of the reasons why I oppose Brexit so strongly. It is unacceptable not to measure those impacts. It is unacceptable to produce an SI which suggests that there are no impacts when you are saying that if we exclude the biggest impact of all, there are no impacts. That is, at the very best, misleading.
I say to my noble friend that anyone in this country who reads this impenetrable stuff as carefully as we have all tried to will realise that there are two hidden falsehoods in the whole activity. The first is: let us pass it because it will never be used. The second is: when we talk about impacts, we will refuse to talk about the impacts which really matter, which are the impacts which disadvantage British people and make us less able to handle competitive situations, deal with our patients and work in the way in which we can at the moment. We, the Government, are not prepared to measure that because then the public might say, “My goodness, this does not sound a very good idea”. So they do not tell them the figures, the costs or the disadvantages, because it would undermine their position.
Lord Warner
I am grateful to the noble Lord and agree with every word he said. Rather more elegantly than I, he made the point I was making about the high impact that these changes, if implemented, would have on British people, jobs, access to medicines and so forth.
In this debate, we are making some fairly serious accusations about the Government and their failure to hold a proper consultation. I hope that the noble Lord will join with me in not allowing that debate to include blaming the Civil Service and the IPO, because they are as much victims as everyone else. They are operating in a system which has not properly allowed them to carry out the consultation that they might have made in normal circumstances. I should not like them, reading Hansard, to think that we are accusing them of dereliction of duty. I hope that he will agree.
Lord Deben
I entirely agree, but I add to that list the Minister because, like every other Minister, he has to defend all this nonsense. He has to defend a decision which the Government made. The Minister responsible has resigned because he saw what it meant. This Minister has to defend that. I do not think that is fair on Ministers. I do not think it is fair to say to a Minister: “You have to explain why there was no proper consultation; why when it says impact it means ‘impact (none of the important impacts but just those we have chosen)’ and when it says ‘costs’ it gives none because it excludes all the big costs which really matter. So no one can make any decisions about this, but it is all right because it may never be implemented”. I know it is very unpopular with the Whips and with Ministers but frankly, this Grand Committee has got to draw the attention of the public to the fact that these SIs are based on a wholly improper, wholly wrong concept. They are not just a transition operation. They fundamentally change the way in which many industries are going to operate. They fail to list the real costs, they have not consulted those who know and they have done a cosy little arrangement which this House and this Committee should not accept.
Lord Adonis
Before the noble Lord sits down, in the concluding remarks of his extremely powerful speech he referred to part 2 of the Explanatory Memorandum, which is where the Minister makes the appropriateness statement in respect of the scope of the regulations. He noted that the Minister, Sam Gyimah, who made all three statements in respect of the Equality Act 2010, in respect of the regulations being appropriate and in respect of whether they are in order with regard to the legislative powers conferred on the Government by the European Union (Notification of Withdrawal) Act 2017, has since resigned, and because of Brexit, the very policy enshrined in the regulations for which the Minister was giving these authorisation statements.
Further, in his resignation letters and subsequent statements, the Minister has expressed his extremely deep concern about Brexit in principle, and in particular the no-deal Brexit, the very subject of the regulations about which he was making the appropriateness statements which are before the Committee. Would the noble Lord agree that not only is this unprecedented—in my experience and maybe in his—but that it raises a huge concern: should we be proceeding with these regulations at all without either a statement signed by the current Minister and/or Sam Gyimah giving evidence to us on whether the concerns he has expressed about a no-deal Brexit might lead him to review the statements he has made on behalf of the Crown in part 2 of this Explanatory Memorandum?
Lord Deben
I do not want to embarrass any Ministers, including the noble Lord who is here. I want to exclude Ministers, both past and present, for a kind of corporate nonsense which the Government have presented and which is supported by a surprising number of people across the Benches. I think this Committee has a responsibility to say to the Minister, “One could not imagine this in any other circumstances. You could not make it up, as you can see when you read the detail”.
I end by coming back to the words I put before the Committee at the beginning. In one case it was “trusted people” and in the other it was “selected people”. It was not just a joke. It was to point out that whoever had to write this stuff knew perfectly well that it did not add up, and that there was no basis for presenting it except that somehow or other, the Government had to find a way of talking about these issues without telling the public the truth about impact, about cost and about the deprivation which this measure would bring to the British people if it were ever implemented.
Lord Adonis
My Lords, in my now quite long experience of the House I have found that on most occasions when policies are being tested and explained, amendments are being considered and so on, the difference narrows as debate advances. That difference can be eliminated entirely, sometimes because the explanations given by the Government turn out to meet the concerns, sometimes because the Government themselves move to meet the concerns and sometimes because the concerns are misunderstood. That is the general course. Because our job is to scrutinise there may still be resulting differences, but those differences are narrowed, not expanded.
However, a pattern is now emerging in the consideration by the Grand Committee of these no-deal regulations. In almost every case now, as the debate continues the difference widens, for three reasons. The first is precisely the point that the noble Lord, Lord Deben, has made so eloquently, which is that you are expected to believe, in the words of the White Queen in Alice in Wonderland, six impossible things before breakfast before you even consider these regulations. The first suspension of total disbelief that we are expected to entertain is that, all other things being equal in no deal, these regulations will simply make technical changes to govern the fact that we have left the EU with no deal. The problem is that all other things are not equal. The whole ground has shifted underneath the very activities, and the national interest and the companies, that are at stake.
That could not have been clearer than in the remarks of my noble friend—as I continue to call him; I know he now sits on the Cross Benches but he and I were Ministers together for many years so he will always be my noble friend—Lord Warner. I dare say that my noble friend, whom I hold in extremely high regard, knows this sector better than anyone in the House except possibly my noble friend Lord Darzi. He has huge, detailed knowledge from a long period of time as a Health Minister. My noble friend has reported to the House two issues of extraordinary import. The first is that the impact of the actual changes in these regulations will be profound for the industries concerned and for those who need to use their services. The second is that most of those directly concerned were not consulted at all.
That leads to the second big issue that has now arisen time and again in the Grand Committee: the consultation has been exiguous or non-existent despite the fact that the issues concerned are hugely important. The noble Lord, Lord Deben, who is one of the most forensic debaters in the House, noted to brilliant effect the use of the weasel words in respect of consultation in the Explanatory Memorandum regarding the,
“selected individuals with expertise in the relevant areas”,
who the Intellectual Property Office chose to consult.
Lord Adonis
They turn out to be lawyers. I have nothing against lawyers; my noble friend Lady Kingsmill is a distinguished lawyer. It is fine that lawyers should be consulted, but others should be consulted as well. I do not think it is for the Government to select who should be consulted. We are a democracy where everyone should have that right. Indeed, the Cabinet Office rules on consultation were long laboured over by successive Governments: there should be 12 weeks of consultation on regulations that should be published, and so on. We are told that that cannot happen in the case of these regulations because we do not have 12 weeks. Well, we would if the Government were not engaging in this ludicrous no-deal planning that means that there are not 12 weeks to start with. That argument is entirely circular.
The Explanatory Memorandum looks to me to be worse than my noble friend and the noble Lord have said, on top of these informal discussions with a small group of selected individuals. Incidentally, I may say that the Minister was unable to tell us at the beginning who were they were; he said he was going to tell us when he wound up, so we are still awaiting the names of those selected individuals. They do not appear to have included any of the significant companies and experts that my noble friend Lord Warner knows.
I will repeat this fact because it is of great importance to the Grand Committee: the only person who we know with certainty has been consulted by, and has spoken to, the Intellectual Property Office so far is my noble friend Lord Warner, because he tells us that he phoned them up and gave them his views. There has been no information from the noble Lord, Lord Henley, or from anyone else as to who the others were. We have now a lengthening list of those who were not consulted, but we do not know who was. That is an extraordinary state of affairs for the Committee.
Lord Warner
I want to be fair to the IPO. It arranged to have a conversation with me at my request and it was perfectly straightforward. It of course had to preserve the confidentiality of what it had done—after all, it is answerable to Ministers and I would not have expected anything less. My information from the BioIndustry Association is that it thinks that the consultation—in so far as it was a consultation—was with one member, possibly a lawyer, of one company. The consultation is looking fairly thin. It may not be much more than that one member as far as this specific set of regulations is concerned. We do not know the extent to which the IPO accumulated a collection of individuals for a range of regulations—that is quite possible—but by no stretch of the imagination can one see a formal consultation over a longish period, somewhere near the Cabinet Office recommendations, of the industry and sector, because the trade body for this sector was excluded. The Association of the British Pharmaceutical Industry may not have been properly consulted either, but I have not had time to check with it.
Lord Adonis
My Lords, my noble friend has made an extremely grave allegation. Would the Minister care to say whether he is correct that precisely one person in one company was consulted about these regulations? I would happily give way to him if he would like to contradict that statement, because it seems to be of immense importance.
Lord Adonis
I think that the Grand Committee will be extremely concerned to have information on this point. If what my noble friend has said is the case, it would be a situation without precedent in my experience: that on matters of significant impact on a major industrial sector, precisely one person in one company has been consulted and the relevant trade bodies were not even given the opportunity to express their views.
Lord Deben
What is more, that one person was selected but clearly not trusted.
Lord Henley
I was going to leave this to the end and I suspect that any intervention I make will just prolong these proceedings, but for the sake of assisting the noble Lord at this stage, I can assure him that consultation participants on the technical view of the draft instrument included the BIA, the ABPI, the IP Federation, the Chartered Institute of Patent Attorneys, the British Generic Manufacturers Association and the agrochemicals industry.
Lord Warner
I flatly reject the idea that the BIA was consulted on the exclusivity aspects of these regulations. That is the assurance that I was given by it and I put it on the record in my speech.
Lord Adonis
My Lords, we seem to have a serious situation where the Minister has just said that one body of central relevance to these regulations was consulted and my noble friend Lord Warner has flatly denied it. Would the Minister like to elaborate on what he said; otherwise, it might be a matter for other authorities to examine?
Lord Warner
The exclusivity point is a key element in these regulations, as I made clear. If the Minister looks at Regulation 55, he will see that. I made it absolutely clear—I am not usually noted for obfuscation —that on the subject of exclusivity there was no consultation of the BIA. I cannot be any clearer than that. If the Minister has evidence that the BIA was consulted on the exclusivity point, I would be happy to withdraw that and apologise as graciously as I can, but the information it gave me was that it was not consulted on that point, which is at the core of this set of regulations.
Lord Henley
My Lords, I am not sure if it is helpful to continue this discussion. That point is for another regulation, not the ones we are discussing at the moment. We will, no doubt, get to that one—and to that point—in due course. I am not making any accusation that the noble Lord has misled the Committee and I do not think I have misled it. I have made it clear who was consulted and I was hoping I could deal with that in my closing remarks as that might have been a neater and tidier way of dealing with these matters. I will leave it there.
Lord Foulkes of Cumnock (Lab Co-op)
I wonder if the Minister could help me out. I have been listening to the speeches since I came back from the Liaison Committee. In the light of what we have just heard, is the Minister still pressing ahead with this statutory instrument? Would it not be better for him to withdraw it and clear up some of these points before we consider it again?
Lord Henley
My Lords, I will continue with these regulations: I have moved them. No doubt the noble Lord will say, as he and other noble Lords have done with other regulations, that he is not happy for them to be considered by this Committee and they can then be considered in another place. However, we are having a useful discussion at this stage, which I want to be part of, and we should complete what we are doing and deal with as much as is relevant to these regulations as we can. I will continue to do that and I will listen to the noble Lord, Lord Adonis, conclude his speech. The noble Lords, Lord Clement-Jones and Lord Stevenson, and other noble Lords will no doubt wish to intervene. I will then respond to that, as is right, proper and normal. It is up to noble Lords to decide where they wish to take things after that. However, we wish to get this through, to provide continued certainty for this body and to assist the whole life sciences industry, the importance of which the noble Lord, Lord Warner, has just reminded the Committee.
Lord Adonis
My Lords, a situation has arisen where there is a serious difference of view, to put it mildly—
Lord Adonis
A difference of fact, as my noble friend has just said, between the Minister and my noble friend Lord Warner, who has just pointed out to me that paragraphs 1 and 2 of Regulation 55 specifically concern exclusivity. This is the precise issue which he said should have been consulted on and on which the companies and trade associations concerned say they were not consulted. I simply note that, but this issue needs to be explored more fully before these regulations go to the House itself, as the situation at the moment is clearly unsatisfactory. The Minister, who is deeply honourable in these matters, would not wish this dispute of facts to be unresolved.
Lord Deben
Is the noble Lord not being a bit unfair to the Minister? Is the real problem here not the word “informal”? The Minister’s problem is that, if you have a formal consultation, you know precisely who was consulted and on what points. As I said in my own speech, if you have this curious thing called “informal” consultation, no Minister is able to answer these questions because you do not know what was said in any of the discussions. That is what is wrong with this consultation mechanism. The noble Lord is being unfair to the Minister, who can only say what is passed on to him, because this was not formal. There was no formal report, so we have no idea and nor does he.
Lord Adonis
The noble Lord makes a very good point. The Minister himself played no part in this process. All he can do is read out messages passed to him by officials. I do not hold him responsible in any way. Nobody was suggesting for a moment that he was personally responsible for engaging in this consultation and has therefore given misleading information to the Grand Committee. The point is that the House needs to know the truth.
I will make one remark on what the noble Lord, Lord Deben, said. He said it is hard to be precise about what happened if conversations took place during informal, as opposed to formal, consultation. However, there is a difference between informal consultation and no consultation whatsoever. The point made by my noble friend Lord Warner is that it appears not that there was informal as opposed to formal consultation, but none whatsoever. No conversations took place between the relevant trade bodies and companies, and the authorities responsible for drawing up these regulations. That is what he said, and it is of huge moment to the House. Using the word “informal” does not excuse these consultations being non-existent, which is the issue before the Grand Committee.
I return to the third thread of concern we have about the whole way in which these statutory instruments are being conducted. First, they depend on us believing the impossible proposition that no deal is not itself going to make a fundamental difference. The second issue we are constantly wrestling with is the inadequate or non-existent consultation. The third is the inability of Ministers to answer the points raised in the debate. That has been a running theme in these discussions. What happens—I dare say this will happen again when the noble Lord, Lord Henley, responds to this debate—is that the Minister restates the case for the statutory instrument that he made at the beginning. He selectively answers one or two points—to give him his due, he has just given a list of organisations that he said were informally consulted; it may or may not be accurate, but we need to establish that—but most of the points raised in the debate are not answered at all by the Minister. To be fair to him, the Minister himself played no part in this consultation and is simply having to read notes given to him by officials, who may themselves have been at some distance from the consultations that took place.
We are then expected to approve these regulations. Because of the inadequate arrangements for the scrutiny of statutory instruments—a point made very eloquently by the noble Lord, Lord Tyler, in earlier debates—we then have no further recourse. We cannot do what happens with primary legislation in this House, which is that we have a Committee stage, we can move amendments and probe the Government further, and the Government are under an obligation to come back to the House with further information. None of that happens. The only recourse we have is to seek to repeat this debate by referring the statutory instrument to the House and hoping—we then have no ability to amend it or to move amendments—that when the Minister comes to make the next speech in the House, he will respond to the points raised in the Grand Committee.
That leads me to an important point about how we handle these statutory instruments when they go to the House. On each of these statutory instruments that we have been debating and doing our best as Members of the Grand Committee to scrutinise, a lot of concerns have been raised but not met by the Government. I see that my noble friend Lord Foulkes is a member of the Liaison Committee and the Procedure Committee. He is a real power in the land in this House. Most of us are never admitted to the inner sanctum of these bodies, but he is. It is extremely important that Ministers write to Members of the House setting out their response to all the issues raised in the Grand Committee before the House comes to debate these regulations, so that we can then properly consider the adequacy of the Government’s further response. Let us consider the vital issue of consultation, which has been raised by my noble friend Lord Warner and on which I do not think the Minister is going to be in much of a position to comment, because he is dependent on notes passed to him by officials who are one stage removed from the consultation anyway. The House would expect a full statement to Members on what happened in the consultation—who was consulted, on what basis, what they said and what the Government’s response was—before this statutory instrument is debated in the House.
We need some mechanism—perhaps it is the Liaison Committee. Perhaps my noble friend Lord Foulkes, who takes on many public responsibilities, should take it upon himself to see that this process is conducted in a timely and adequate fashion before the House debates statutory instruments. I do not know whether my noble friend would be willing to take on that responsibility, but I am volunteering him. Otherwise, he may have a suggestion that we as a Grand Committee can then make for who should undertake this responsibility.
Lord Foulkes of Cumnock
I shall pretend to be a Minister and say that I shall look at that very carefully.
Lord Adonis
In the want of a better solution, I shall recommend to the Government that my noble friend Lord Foulkes should take this on, because on the basis of the debate that we have had so far, we will not have confidence that this procedure will be conducted unless there is an impartial referee to see that it has taken place.
I turn to a new issue of substance in the regulations. Many Members of the Grand Committee will have been briefed, as has my noble friend Lord Warner, by those directly concerned by the issues raised in the regulations and whether, as the noble Lord, Lord Henley, said, they do indeed make minimal changes to the existing regime, allowing for the fact that we are in a no-deal situation. I draw the Grand Committee’s attention to and ask the Minister to respond to arguments being put before Members by Bristows, a law firm which specialises in patent law. It has raised a serious concern about the regulations, specifically the adjudication mechanism. I set that concern before the Grand Committee and hope that the Minister will respond.
Bristows states that the amendments have potential ambiguity in the following respects. They provide that a declaration of invalidity of a supplementary protection certificate may be submitted to the “comptroller or the court”, in the words of the regulation, with the court being the Unified Patent Court if the basic patent is subject to the Unified Patent Court’s jurisdiction under Schedule 4 to the Patents Act 1977. However, under Schedule 4, the UPC has exclusive jurisdiction for invalidity actions of a supplementary protection certificate based either on a unitary patent or a European patent. Therefore, Bristows argues, the court referred to in the context of the “comptroller or the court” in the draft statutory instrument, when interpreted in the light of the Patents Act 1977, will, for those supplementary protection certificates, be the Unified Patent Court.
Further, as stated in Schedule 4 to the 1977 Act, the Unified Patent Court should have exclusive jurisdiction in such cases. “However”, Bristows asks,
“what is the impact of the reference to ‘the comptroller’ in the expression ‘the comptroller of the court’? Does this leave this national UK authority … with jurisdiction as well as the UPC? The natural meaning of the Statutory Instrument … suggests that there remains additional jurisdiction in the hands of the Comptroller as well as the Court … even if this was not intended. In consequence, it may remain possible for SPCs based on unitary patents to be invalidated in the UK”.
This looks to be a serious concern. I freely confess to the Grand Committee that, not being a patent lawyer myself— my noble friend Lady Kingsmill is, so she may be able to add to this—I do not entirely understand the impact of this concern, but Bristows believes it may be serious. The Grand Committee would be very grateful for an answer to Bristows’ concerns when the Minister replies. If he cannot give one in detail today, perhaps he can include it in his written response to Members of the Grand Committee after the debate.
Baroness Bowles of Berkhamsted (LD)
Maybe I should start with the last thing; I understand the point but I have not investigated it myself, so I cannot say whether it is a concern or not. However, the gist of it is that if something is a unified patent it should go to the Unified Patent Court if and when that continues, and, if it is a UK matter, it should be a matter for the UK.
Lord Clement-Jones (LD)
My Lords, we have to conclude after the debate so far that this SI is holed below the waterline and the Minister will have some difficulty in preventing it sinking. He will have to write a pretty good letter by the time this comes to the whole House to see that it goes through when it comes to a vote there. The powerful speech made by the noble Lord, Lord Warner, has exposed the business issues involved in this. I was interested to hear what the noble Lord, Lord Adonis, said about the legal technicalities on this, and of course the impeccable logic of the noble Lord, Lord Deben, and the noble Baroness, Lady Kingsmill, on the consultation and the impact assessment is unassailable. The Minister will therefore have a great deal of difficulty in persuading us to approve these regulations, whether here or, eventually, in the House.
I am grateful to my noble friend who is a patent expert. My expertise in intellectual property extends to trademarks and copyright but it is very useful to have her unpacking of some of these issues as well. What particularly concerns me about the substance of the SI is not just that it is in the eventuality of no deal but that it has all the signs of something that was planned to take effect at the end of the transition period if the Prime Minister’s deal was going to take effect. This looks as if it is a longer-term arrangement. I think it was enshrined in the White Paper, or at least the outlines of it were, and that makes it of particular significance to get right. If there is any kind of deal then I suspect that this is what will be put into effect. It therefore has a double significance and is not just a fix for this purpose which has not been consulted over and which is not acceptable to a major trade body. I have dealt with the BioIndustry Association and I have a great deal of time for it and respect for the expertise that it embodies. The fact that there has not been adequate consultation over something that is potentially a long-term solution makes this even more questionable.
Lord Warner
I am sorry to interrupt the noble Lord further but I want to give a bit of support to what he is saying. In my remarks I drew attention to the fact that the MHRA, the UK pharmaceutical regulator, actually tried to suggest to the BIA that it should wait for a review in two years’ time. That looks remarkably like the timetable for the end of the transition period, so I want to give some support to the arguments that the noble Lord is making.
Lord Clement-Jones
I thank the noble Lord for that intervention because that is exactly the impression that I had got.
To add to the Minister’s woes, I want to go off into a completely different subject that he himself raised at the very beginning: the issue of the Agreement on a Unified Patent Court and the unified patent. The unified patent has come up; the Minister has mentioned it and it was included in the technical note in September. There is a big issue surrounding the Agreement on a Unified Patent Court and the unified patent. If the agreement is ratified by Germany and comes into force ahead of any exit date, the UK will need to work out how to remain a member of the UPC or withdraw from the system, which could have a significant impact on business. Of course, at this stage it is not clear if the agreement will come into effect at all, but if it does and if, as a third-party country, the UK then wants to take part, is it not clear—I have a 39-page legal opinion on this subject—that we, the UK, will have to acknowledge the supremacy of EU law and the ECJ as part of signing up to the UPC agreement? What kind of “taking back control” for Brexiters will that be?
What advice have the Government received on this matter? I heard what the Minister had to say: he made the very positive statement that we were going to sign up. Have the Government had any further observations on the UPC agreement and the unified patent? How do they envisage UK legislation dovetailing with both systems, assuming that it is ratified?
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a good debate that has raised lots of issues. I think the noble Lord, Lord Clement-Jones, is right that there are real questions to be asked here, although I feel that we are experiencing a bit of a split focus here. It is like being part of the film “The Matrix” because there seem to be two different levels of debate going on. There are the particularly narrow questions about the statutory instrument as presented, with which I think there are some substantial difficulties, but there are also the wider issues about why we are doing all this and the way that we are doing it. The noble Lord, Lord Deben, and others have focused on the absurdity of a situation where we are trying to persuade ourselves that, despite our best instincts, despite all the training that we have had here and despite everything that we do every other day of our lives, we are quite happy to sit here and wave this through just because it might not happen. That seems to be Alice in Wonderland rather than “The Matrix”, but perhaps they come together in a curious way which I have yet to experience.
The noble Lord, Lord Clement-Jones, commented on the Unified Patent Court, which is an intriguing area of public policy which has yet to have its full ramifications explained. He is absolutely right that the UK has committed itself to ratifying the UPC and intends to join up. I am sure that the Minister will confirm that when he comes to respond. Of course, with that comes the continuing role of the ECJ, because all judgments of the UPC—although there will be a platform of it operating here in London in property which has already been bought and refurbished in premises on a lavish scale which may not have been seen by the press yet, but I am sure that when they are there will be a bit of a scandal—will be absolutely redolent of the way in which the European continuing engagement will have to operate. That is because so many people hold unified patents and will need to have them defended in ways which are important not only here but in the six other areas where the court will be operating. But that is part of the further discussion and debate along with the consultation issues which I agree need to be bottomed out at some stage, but perhaps not today.
I may just stunt the time taken up by other speakers by looking at the other four SIs which are due to be discussed shortly by the noble Lord, Lord Bates, and others. I am sure that he will have read through and inwardly memorised the rather clever phrasing used by HM Treasury which I recommend to the department as it might wish to use it in the future and thus avoid some of the confusion. It states:
“HM Treasury has not undertaken a consultation on the instrument, but has engaged with relevant stakeholders on its approach to Financial Services legislation under the European Union (Withdrawal) Act 2018, including on this instrument, in order to familiarise them with the legislation ahead of laying … The instrument was also published in draft, along with an explanatory policy note, on 31 October 2018, in order to maximise transparency ahead of laying”.
That is wonderful phrasing and I congratulate the Treasury on having found a way out of an apparently insoluble problem. If it can defeat the noble Lord, Lord Adonis, and his assembled minions, obviously it will be well ahead of the game.
Lord Adonis
My Lords, I am grateful to my noble friend for giving way. Does he not think that the best way of maximising transparency, which is a laudable objective that the Grand Committee shares entirely, would be to have an ordinary consultation under the Cabinet Office procedures of 12 weeks where people can make formal responses? The Government then evaluate those responses and publish their response together with all of the consultation responses before the debate in the House rather than what the noble Lord, Lord Henley, is proposing, which is that the consultation should take place after the House has approved the regulations.
Will he further say, in this new Alice in Wonderland world in which we work where consultations take place after Parliament has agreed the regulations on which we are consulting, how he thinks that Parliament is then intended to take account of the consultation? In the world of the noble Lord, Lord Henley, where we consult on the regulations having passed them, if the result of the consultation with the trusted and selected individuals or the selected and trusted individuals shows that there is a need for further substantial revisions to the regulations, what are we supposed to do? What procedure does my noble friend have in mind for how we then rescind these regulations and produce new ones? Does he not think that it would be better if we could come out of Alice in Wonderland and go to the world that applied before Brexit started, where we had good, orderly government and consulted on major changes to legislation before we brought about those changes rather than afterwards?
Lord Stevenson of Balmacara
My Lords, I regularly spend most of my day with Alice in Wonderland because I think that it is a wonderful place to be. The noble Lord will be surprised to learn that I agree absolutely with every word he has said. The only difference between us is that I do not think I need to repeat it every time.
Finally, I wish to draw two points to the attention of the Government. The first is that we have to be clear about the damage that will be done to the UK’s pharmaceutical industries along the lines of what the noble Lord, Lord Warner, said. I hope that we will get a letter from the Government confirming or denying some of the points which were made in that exchange. Secondly—this is a minor point but it is worth exploring and asking questions about. In paragraph 4.3 there is rather confused wording about—the extent and territorial application of this SI. Although it applies to the United Kingdom, bits of it, which are not specified, do not apply to the Isle of Man. Activities have been taken up so I would be grateful for a side note because this needs to be responded to today.
Lord Henley
My Lords, I confess that I cannot begin to answer the noble Lord’s question about the Isle of Man, and promise to write on that and the other issues I did not manage to cover. I note what he says about the advice that my department—the Department for Business, Energy and Industrial Strategy—should take from Her Majesty’s Treasury. As with all departments, we always listen carefully to what our colleagues in the Treasury say, and this time will be no exception.
I was not intending to intervene in the middle of the debate, but I did, and so to get back to this question of consultation and how we set about this with these regulations—which I repeat, are only to deal with the no-deal possibility I think the noble Lord, Lord Adonis, would be the first to agree that we would be irresponsible in not having done something should that eventuality arise. I give way to the noble Lord.
Lord Foulkes of Cumnock
The Minister has been very kind and polite, and I am most grateful to him. Talking about the impossibility of dealing with things, I—like the noble Lord, Lord Deben—have some sympathy with him, and even more with his civil servants behind him. In today’s Order Paper, there are 38 affirmative instruments waiting for consideration by the Joint Committee on Statutory Instruments, 65 affirmative instruments waiting for affirmative resolution and 18 proposed negative statutory instruments made under the European Union (Notification of Withdrawal) Act 2017. Is it not irresponsible to be pressing ahead with this, with no proper scrutiny on things such as conservation, animal health, veterinary surgery, pesticides, employment rights, construction products, insurance distribution, maritime transport, motor vehicles, plant health, air quality? I could go on and on. We are rushing them all through. Is that not irresponsible? Is that not a waste of the Minister’s time and the time of the well-qualified people behind him, in anticipation of something none of us really want to happen? Would it not be better if the Minister came to his senses now, withdrew this order and, along with all his other colleagues, said, “We are not going to take any more of these orders through the Grand Committee and the House of Lords because it is a total waste of time and totally irresponsible”?
Lord Henley
My Lords, I am always kind and polite to the noble Lord. I know he is a delicate flower and does not want me to be too hard on him.
I appreciate there are a lot of no-deal regulations and that we are asking a lot of the Joint Committee on Statutory Instruments. The noble Lord has served on that wonderful committee, as have we all, and it does a very good job, as do the other committees that have this duty. We are satisfied that they have enough time and resources. I think the House feels that it too has enough time. This can be discussed by the usual channels. We are having a very useful debate this evening and I am looking forward to continuing that process. It is difficult, but equally it would be much more irresponsible not to be moving regulations or producing them for the eventuality that there was a no deal, because the noble Lord will be aware that as a result of Article 50 and various other Acts of Parliament that have been through both Houses, if we do not reach an agreement by 29 March, we leave the EU without a deal. This order, the previous order and other orders are designed to provide that certainty businesses need, and we will continue to move the appropriate orders.
Lord Henley
Will the noble Baroness let me finish? I will then give way. She must not be quite so enthusiastic.
As is right and proper, we will then move them so that we can be in that prime position.
Baroness Kingsmill
My Lords, it surprises me that the Minister is not concerned by the extent of the statutory instruments still to be debated, because the question must be asked: why on earth are we rushing through them at this late stage? There have been two years in which we could have been prepared; there were two years when the possibility of a no-deal outcome was on the cards. Why on earth are we and the noble Lord’s civil servants being expected to race through with inadequate research and consultation now at such a late stage when there have been two years when these things could have been prepared?
Lord Henley
My Lords, I simply do not accept that point. The fact is that we are doing them now and giving them proper scrutiny, as the noble Baroness, her noble friend and other noble Lords would accept. There will be other opportunities to debate this and other regulations.
Lord Henley
My Lords, I am on my feet, and I will give way to the noble Baroness when I wish. I will now give way.
Baroness Kingsmill
May I just say that we have been at this for getting on for four hours? If we proceed at this pace with the number of statutory instruments that we have still to debate, we will never get through them and there will be a vote before long to say that there will be no no deal. So what is the point of all this? I referred earlier to Alice in Wonderland; it seems even more peculiar.
Lord Henley
My Lords, the noble Baroness is getting on to wider questions. I cannot remember whether it is in Alice in Wonderland or Through the Looking Glass, but I am a mere pawn on the chessboard of life. I believe that we are having appropriate discussion on the order and I think that it is right and proper that, since we have started, we should continue. I look forward so to doing and, as I said, there will possibly be other opportunities as well. I think we should continue with that. Others, who may be the kings, queens and bishops, will then discuss what is the proper procedure, but at the moment, we are considering the Patents (Amendment) (EU Exit) Regulations, which relate only to no deal. We do not want to broaden it out to other things; others can discuss that issue.
Let me return to the debate and the consultation. As I made clear earlier, the IPO sought the views of a group of individual stakeholders—I shall not go into the slightly different words that my noble friend cited from different letters—and consulted them in their personal capacity to identify any issues with the drafting and raise any concerns with the approach. As I made clear, legal experts—there is nothing wrong with lawyers; the noble Baroness, Lady Kingsmill, is one of them, as am I—and business representatives were present. It was a helpful and constructive review of the draft and it was understood that the regs were designed to maintain continuity. I repeat for the sake of the record that at that meeting, as I understand it, there were representatives from the BIA, the ABPI, the IP Federation, the Chartered Institute of Patent Attorneys, the British Generic Manufacturers Association and the agrochemicals industry. If I can add to that list and give further details, I will certainly include that in any letter I write to noble Lords.
On letters, I believe—I am open to correction—that in advance of these regulations I wrote to the noble Lord, Lord Stevenson, and to the noble Lord, Lord Fox, from the Liberal Democrat Benches. I do not know whether I should have taken that wider and written to others. I will consider that with each order I deal with, as appropriate. I also make clear, on the lack of consultation, that we were not preoccupied with the deal. The IPO had sufficient resources to take both deal and no deal in parallel. It was necessary across Government to treat no-deal preparations sensitively when we were in the middle of negotiating a proper deal. From the perspective of business, retaining the regulations means that both the process for applying for an SPC and the scope of the right for which it is granted would be the same after exit as before.
I turn to the post-exit concerns of the noble Lord, Lord Warner. I appreciate that after exit day there may be new drivers for policy change. I think it was the noble Lord who talked about the possible time it may take to get a UK authorisation compared to now and the potential effects. I hear the noble Lord’s concerns, but we should understand the issues when the time comes then properly consider the right policy solution at that point. As I have already said, I would expect that to involve the more usual open and constructive discussions with stakeholders and interests in this area that the IPA usually enjoys. I can assure the noble Lord and others that our intention would be to fully engage with the BIA, the IP Federation and other similar bodies.
Lord Warner
I just want to clarify for the Minister that the damage to the life sciences will be wider as a result of Brexit, but the point I made in my speech was that it is the result of the approach to exclusivity and SPCs in this set of regulations. It is not a wider set of damage. It is a damage to the industry and the sector arising from this set of regulations.
Lord Henley
The noble Lord is right to point to the importance of the life sciences sector, and I am grateful he did. One should also re-emphasise—I would be grateful if the noble Lord would do so—just how important the life sciences industry is to us and what a great state it is in at the moment. The noble Lord will be aware of the recent stage 2 of the sector deal in life sciences that we published along with that sector. I am sure the noble Lord very much welcomed the fact that a major multinational—one based in Brussels, for that matter—announced at that stage that it was investing a further £1 billion over the next five years in research in the UK. Obviously Brexit is not putting off certain parts of the life sciences industry, and I am sure the noble Lord will welcome that.
I do not share the noble Lord’s view that there is a policy change. The SI maintains precisely the current calculation of the SPC duration, and at present it is calculated from the first marketing authorisation in the EEA, which includes the UK. After exit, without the provisions we have set out in this SI, the duration of an SPC in the UK would be calculated from the first authorisation in the EEA—but that would not include the UK. That would be nonsensical and is exactly the sort of deficiency that Parliament gave Ministers carefully limited powers to fix within the withdrawal Act. We believe we are complying with the powers we have within the withdrawal Act. That is what the SI does. It shows that after exit, SPCs within the UK will continue to be calculated from the first marketing authorisation in the EEA or the UK, and the status quo is maintained.
Finally, I turn to the point made by the noble Lord, Lord Adonis, about the Explanatory Memorandum. He said that there was little impact. If a measure has a net impact to business of less than £5 million then obviously a full impact assessment is not required. The £5 million threshold, as the noble Lord will be aware as a former Minister, is set out in the better regulation framework guidance, and measures below the threshold must be accompanied by a proportionate analysis. The analysis is summarised, as the noble Lord will be well aware, in paragraph 12.3 of the Explanatory Memorandum.
I used the word “finally” but, if noble Lords will bear with me, I will have one or two more “finallys”. I turn to the concerns about the unified patent court. We have set out our proposals for the future relationship with the EU, including exploring continued participation in the UPC and the unitary patent. In the political declaration, the UK and the EU have agreed to co-operate in areas of mutual interest relating to intellectual property, including patents. The future of the UPC and the unitary patent will be a matter for negotiation. It is therefore rather too soon to be setting out the further dovetailing legislation.
The noble Lord, Lord Clement-Jones, also set out the points made by the law firm Bristows. We are aware of the point that Bristows has made. The patents legislation contains a number of references to the comptroller and the court, and all those references will be modified in the event of the UPC coming into force. The patents legislation will fully recognise the jurisdiction of the UPC.
Lord Clement-Jones
I apologise to the Minister but actually it was not the Bristows opinion; the 39-page opinion that I mentioned is actually from Brick Court Chambers, and it is very comprehensive. It makes it very clear that if we are to sign up, or to continue with our intention to sign up, we will have to recognise the jurisdiction of the European Court of Justice and there will be no getting out of that. That is what makes this so ironic in the circumstances.
Lord Henley
I look forward to reading the opinion that has emanated from Brick Court Chambers in due course. I was responding, I thought, to the points that the noble Lord had made about Bristows.
Lord Henley
I apologise to the noble Lord, Lord Adonis. I will no doubt study, as will my officials, both the Bristows letter and the opinion from Brick Court.
Lord Adonis
Before the Minister sits down, he has very kindly said that he will write to respond to a number of the points that he has been unable to deal with. Those points are going to be crucial for the House itself to consider when this regulation goes to the House, particularly the points about consultation that were raised by my noble friend Lord Warner.
I ask that the Minister sends his reply and full statement in response to the debate to all Members of the House together with a copy of the debate itself because of the very unsatisfactory arrangements under which the proceedings of the Grand Committee are now reported. They are no longer in the main body of Hansard, a change that I find inexplicable. I do not know when it happened. It must have been beyond the oversight of that shrinking violet, my noble friend Lord Foulkes. It would never have happened if he had noticed it; he must have been shrinking on that particular day. If the Minister could send his full response, with the full proceedings of this debate, to all Members of the House it would be extremely useful in informing noble Lords before they consider these important matters.
Lord Henley
I think that the noble Lord would not expect me to respond quite as positively as he wishes. It might be an overuse of paper to write to every Member of the House. I will write to the noble Lord and other appropriate Peers, and make sure that a copy of my letter is, as always, available in the Library. The noble Lord and I understand that procedure well. A copy of this debate will be available in Hansard. Even if it is not the same Hansard in which reports of the Chamber appear, I understand that it is still Hansard and open to all noble Lords to read. If we want to be really modern about these things, it is also available for the noble Lord to read online.
Baroness Bowles of Berkhamsted
I have two points before the Minister sits down. First, I do not think he replied to my point about whether there was any intended alignment with the supplementary protection certificates and parallel import points. The Minister may wish to come back to me on that. Secondly, the unified patent court and its relationship to the ECJ has been mentioned. That is inevitable. The unified patent court is an international court. The European patent is not an EU invention—it is external to it—but it has been agreed under the convention to which the UK is a party that it recognises the judgments of the ECJ. As I understand it, our own Intellectual Property Office would therefore have to take those judgments into account. Whatever convolutions there may be, we will not get away from the influence of ECJ decisions, whether or not the unified patent court comes into being.
Lord Henley
My Lords, I will write to the noble Baroness on both those points.
Lord Adonis
My Lords, a moment ago the Minister mentioned writing to “appropriate Peers”. I have never before heard a Minister in the House using the phrase “appropriate Peers”, presumably as opposed to inappropriate Peers. I suspect that, in the Government’s view, I am probably an inappropriate Peer. Particularly in the light of my noble friend Lord Warner’s remarks about “selected and trusted” consultees, I hope we are not going to start introducing the concept of selected and trusted Peers who are to be made privy to the Minister’s responses to these debates. I strongly suggest that all noble Lords receive his letter, together with the account of the proceedings of the Grand Committee. If he is not able to give that assurance, will he take this matter up with the Leader of the House and let noble Lords present in Grand Committee today know soon what the Government intend to do on this? I and other noble Lords may wish to take this matter up with the Leader of the House and with my noble friend the Leader of the Opposition. It goes to the rights and privileges of Members when the whole House considers these matters.
Lord Henley
This is one occasion where I can give a categorical assurance to the noble Lord, because he merely asks what I meant by “appropriate”. I define it as meaning that I will write one letter to all noble Lords who have taken part in this debate and make that available in the Library of the House, as is the normal convention. By that means, all those who have taken part in the debate will have a copy of my responses to the noble Lords, Lord Warner, Lord Adonis, or Lord Clement-Jones. It would be easier if I wrote one letter to all “appropriate Peers”; that is, Peers who have spoken in this debate.
Lord Adonis
My Lords, I am grateful to the Minister for seeking to define “appropriate”, but I do not think that Members of the Grand Committee think that his definition is adequate. Our job is to advise the House as a whole, but there may be a feeling in the Grand Committee that other noble Lords should receive this letter so that they are aware of the gravity of the issues raised about the whole future of the life science industry, which the noble Lord, Lord Warner, referred to, and the importance of taking note of those issues before the House comes to consider them.
Lord Henley
I am grateful to the noble Lord, because obviously he always considers what is important to the House. He will no doubt make sure that that letter of mine, which will be available in the Library of the House, is made available to everyone else whom he thinks it is right should see it. I cannot go further than that, but it would not be right to write to every noble Lord on this regulation.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
The Question is that the Grand Committee do consider the Patents (Amendment) (EU Exit) Regulations 2018.
The Deputy Chairman of Committees
My Lords, I must remind the Grand Committee that a single call of “Not content” has the effect of negativing the Motion. With that in mind, I put the Question again. The Question is that this Motion be agreed to.
Trade Marks (Amendment etc.) (EU Exit) Regulations 2018
(5 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Henley
That the Grand Committee do consider the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018, the Patents (Amendment) (EU Exit) Regulations 2018 and the Trade Marks (Amendment etc.) (EU Exit) Regulations 2018.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)
My Lords, intellectual property plays a vital role in the UK’s knowledge economy, and this will continue to be the case after our departure from the European Union. Ensuring strong and balanced IP protection and enforcement is central to the Government’s aim of encouraging businesses to innovate and develop new ideas and technologies, which forms part of the industrial strategy. As I said in the debates on earlier regulations, our intellectual property system is consistently rated as one of the best in the world. These regulations are part of the work being delivered by the Intellectual Property Office to ensure that the system governing intellectual property rights in the UK continues to function in the event of no deal being agreed when we leave the EU in March. This is essential to ensure a smooth transition for business and to provide maximum certainty and clarity.
It is possible to obtain trade mark protection in the UK under the domestic regime and in the European Union under the European Union trade mark regulation. The majority of UK and EU trademark law is harmonised. Much of our domestic legislation derives from EU directives, which were implemented through the Trade Marks Act 1994. The EU trade mark regulation offers the possibility of retaining EU-wide trademark protection in the form of a single registration at the EU Intellectual Property Office. This system runs in parallel to our domestic system, so prior to exit, protection in the UK may be obtained by registration under both the EU and UK systems. After exit, protection in the United Kingdom for trademarks registered under the EU regulation will be lost. The draft instrument before the Committee today uses the powers provided by the withdrawal Act to address deficiencies in the UK trademark law which would arise from exit. EU directives providing for harmonisation of national law relating to domestic trademarks are also aligned in many respects with the EU regulations providing for EU-wide trademarks.
I shall focus in particular on how the Government are ensuring the continued protection of EU trademark rights in the UK on exit. Noble Lords may recall that the EU Intellectual Property Office was established in 1994 as the Office for Harmonisation in the Internal Market before being renamed in 2016. Its goal is to help further harmonise EU trademark law and provide an EU-wide trademark right. Around 1.3 million EU-registered trademark rights are at present in force. These EU trademark rights have protection in the UK. Indeed, many products and services in this country will bear the names of registered EU trademarks and are owned by UK companies. If we do not act, the protections afforded to those rights will be lost. Many of those in this Room will be familiar with the brands which use these types of trademarks, from food and drink retailers to global clothing firms, luxury car manufacturers and everything in between.
Lord Henley
My Lords, I am going to complete this sentence and then I will give way to the noble Lord.
The instrument ensures that replacement domestic rights will be provided to those who own EU trademarks on exit day. It gives certainty and confidence to businesses who rely on their trademark rights in the UK. I will now give way to the noble Lord.
Lord Adonis
I am grateful to the Minister. He referred to the fees for filing applications, the very large number that will be pending and those which will need to be converted. An issue of real concern that has been raised by those who have looked at the regulations is what those fees will be and whether the fees for filing converted applications will be the same as the normal trademark application fees. Can he tell the Grand Committee what the position will be in terms of the fees that will be charged?
Lord Henley
My Lords, again, I was going to deal with that at the end. There will in fact be no costs to business associated with our creation of new UK rights. However, because the UK comparable right will be independent of the EU trademark, there will be a charge for businesses in relation to future renewal. Businesses that wish to maintain their protection in the UK will need to renew their UK-comparable trademark at an average cost of some £300 for a registration period of 10 years. Applications for EU trademarks that are pending but not yet registered at exit day will need to be examined under UK law. The normal UK fee, whatever that is, will therefore apply to those applications. We have committed to respect the relevant filing dates for those applications under this instrument.
Baroness Crawley (Lab)
My Lords, on future renewal fees, what are we talking about when we refer to the future? Is it beyond the transition period or within it? How are we defining “the future”?
Lord Henley
My Lords, if the noble Baroness will be patient, the trademark is renewed every 10 years. When it is renewed, a fee will be paid. That does not change.
The instrument provides that these new UK rights will be fully independent UK trademarks which can be challenged, assigned, licensed or renewed separately from the original EU trademark. Such new UK trademarks will, however, retain their original EU filing date and therefore any other relevant dates that were filed as part of the original application.
Finally, there are miscellaneous amendments to the Trade Marks Act 1994 and the Trade Marks Rules 2008 to reflect the fact that the UK will no longer be a member state or a member of the European Economic Area.
In conclusion, these regulations are a small but vital part of ensuring that this part of the intellectual property system continues to function if the no-deal outcome arises. I hope that on this occasion, noble Lords will support the draft regulations. I commend them to the Committee.
Lord Adonis
He has not sat down, in the sense that he is perfectly capable of answering a question before he concludes his remarks.
He again has not dealt with the question of consultation, which as he knows is of huge concern to the Grand Committee. We would be grateful if, before we come to our debate, he could set out what consultation has taken place, so that we can discuss whether we think that consultation has been adequate.
Baroness Bowles of Berkhamsted (LD)
One small point struck me, not having looked at this before we commenced proceedings. I fully understand the transfer of the pending applications and the ability to file a new application and have it allocated the earlier filing date that the European trade mark had. I do not see any legal difficulty with that, but I wonder if there is a legal difficulty in allowing that to claim the priority date of the EU trade mark, in the sense that it would operate under the Paris Convention, which we and many other countries are party to. I used to take great pleasure in reminding the EU that the Paris Convention of 1883 predated the EU treaties and that they sometimes could not do things. But I wonder whether there has been any advice on that, because there is a discontinuity.
To take a parallel example, in the United States, if you file a continuation in part, there are careful rules so that you can ensure that the priority claim can go all the way through in a continuous way. I wonder whether, through the changing from a European office to the UK office, there is a discontinuity here that would mean that priority date was challengeable. If there was a later priority date UK-only national application from an applicant not from the United Kingdom but from another country that was party to the Paris convention, would there be a clash of rights? It is a question that should appeal to lawyers looking at these things. I cannot answer it without having a longer think, so I am asking the Minister whether he can advise me what advice he may have had on that.
Lord Clement-Jones (LD)
My Lords, my noble friend has asked an important technical question, given her long-standing expertise in this area. As with the patent statutory instrument, this does appear to be a solution for trademarks, or to take advantage of the European community trademark. It appears to be a solution devised not just for a no-deal situation, but with a deal or the transition period in mind as well. Again that gives this particular statutory instrument a greater significance because it might be there for some considerable period of time in the event that a deal was reached. Moreover, as the noble Lord, Lord Adonis, has pointed out, similar issues regarding consultation and the impact assessment arise in connection with this statutory instrument as well.
It was interesting to hear what the noble Lord, Lord Deben, had to say about the difference in wording between the different Explanatory Memoranda. Asking a,
“small group of trusted individuals with expertise in trade mark law”,
almost means that the question is asked of people who are not going to give you the wrong answer.
Quite frankly, the really important aspect of this is the impact on business. On the impact assessment, the homework has been done in such a way that it answers the question by bringing the impact under £5 million. I cannot believe that that will be the total cost to business once you have added together all the issues such as the legal advice that will need to be taken and the red tape involved. I know this is a solution that is designed to be constructive but there are inevitably going to be costs. Frankly, the importance of brands being what it is, the actual costs involved to business are going to be quite high. I cannot believe that the figure is not going to be higher than £5 million.
The same issues apply to this statutory instrument as much as they do to some of the earlier ones. However, there are other technical questions. My noble friend has asked one set about the priority date, but another important question is which court will have jurisdiction if the validity of the original EU trademark is challenged in the future. We cannot leave business in a state of uncertainty. Then of course the UK trademark comparable right will be a stand-alone right. Does that mean that in those circumstances an applicant will have to challenge a trademark’s validity both in the UK and in the EU? What is the answer to that? One right derives from another. As a result of that, does someone wishing to demonstrate the invalidity of a trademark have to go to two jurisdictions? If that is not an additional burden on business, I do not know what is.
There are a number of questions to be asked here. We have come back again to the circularity of a quick fix that could have long-term consequences and where the procedure, process, consultation and impact assessment have been grossly unsatisfactory.
Lord Adonis
Before the noble Lord sits down, he has great familiarity with the sector, as does the noble Baroness, Lady Bowles. Does he think there are similar concerns in the sectors affected to those referred to earlier by the noble Lord, Lord Warner, that organisations and companies intimately affected by these regulations have not been consulted because they do not count within the,
“small group of trusted individuals”,
referred to in paragraph 10.1 of the Explanatory Memorandum?
Lord Clement-Jones
I cannot answer that question. I think that these have been drawn up in an attempt to be constructive. I do not think the initial thought was that these were going to create difficulties for business. The trouble is that at the end of the day any business, when it is looking at its intellectual property, is going to prefer to stay in the EU rather than come out, so there is a fundamental aspect of this which is not business-friendly. I can see what the noble Lord is driving at, but this measure is an attempt to be constructive in circumstances where it is very difficult to get a decent result.
Lord Puttnam (Lab)
My Lords, on that point, I have spent the last 50 years of my life earning my living as a result of intellectual property. It is almost impossible to explain to noble Lords and the Minister how fundamental the harmonisation of intellectual property and the clear, clean flow of revenues generated by it is to the financing, never mind the issue of recruitment, of material for film, television and associated industries.
Lord Stevenson of Balmacara (Lab)
My Lords, we welcome back my noble friend Lord Puttnam, who has been too far away. He has just been trying to finance a film, so he speaks with some detailed recent knowledge on these matters. He makes a broader point which is that the losses we are incurring as a result of these changes are very significant indeed and are not taken into account in any of the costings we have seen on the table so far.
We have had a number of contributions. The noble Baroness, Lady Bowles, was right to remind us of the fundamental Paris Convention of 1883—soon to be updated, I think—which will possibly have a larger role to play in the post-Brexit scenario, should there be one. We have to build into that the very odd demarche taken by the Government in this SI, which is to solve a problem caused by the country losing the ability to trade in the way that my noble friend Lord Puttnam has said across all boundaries and simplifying all the arrangements by bringing in an additional right for those who are trading into the UK from outside when it is not at all clear, and almost certainly not the case, that the UK in a separate environment will be offered that. I do not really follow the logic of that. It came up, as was said, in an earlier SI. I would be grateful if the Minister could respond with a bit more context on why this generous gesture, very asymmetric in its approach, is being made now and in a way that will complicate any future negotiations and discussions.
Lord Henley
My Lords, I will try to be brief and as always I will offer to write to all appropriate noble Lords. I think the noble Lord, Lord Adonis, knows what I mean by appropriate.
Lord Henley
Appropriate. The noble Lord will be aware that I trust all noble Lords implicitly and explicitly.
On consultation, I again make clear that the IPO has been engaging with businesses on the implications of exit, and in particular on trademarks, since the referendum result. It has also consulted with specific stakeholders on the technical detail of this instrument. It prefers to fully consult whenever possible but, due to the unique nature of EU exit and sensitivities around negotiations at the time of drafting, we felt the best course on this occasion was to limit consultation.
The noble Lord, Lord Clement-Jones, asked what happens if there is a deal and what the point of the regulations are. I repeat that the regulations will only come into force in the event of no deal. If we secure a deal with the EU, the provisions on intellectual property in the withdrawal agreement will come into effect, and that means EU trademarks will continue to have effect in the UK at least until the end of the transitional period. During the transitional period, it is likely that revised regulations will be drafted which will take into account the result of further negotiations reflecting the future economic partnership.
I will touch on possible costs. The noble Lord, Lord Clement-Jones, doubted that the costs could be less than £5 million. The annual revenue cost has been estimated at between £2 million and £2.7 million, based on a 60% renewal rate in the UK between 2008 and 2017. I would prefer to write to the noble Lord in greater detail on that.
Lord Warner (CB)
The noble Lord made an interesting remark a few moments ago about the fact that he had chosen to limit the consultation. I wonder, after the discussions this afternoon and last week, on what basis the Government are operating on consultations? They are clearly not operating on Cabinet Office guidance on consultations. What guidance has actually been given to civil servants on carrying out consultations on behalf of Ministers? I think that the Grand Committee would like to see the basis that the Government are using for consulting on these regulations.
Lord Warner
With due respect to my noble friend, I am not so worried about that at the moment. I may become worried when I see the basis on which the consultations are taking place. I think the Grand Committee—and I in particular—would like to see what system the Government are using for consulting on these regulations.
Lord Henley
My Lords, I can make it clear that, throughout all these SIs, the Government have been engaged in what one might call a cross-government approach to consultation, to make sure that we get things right. We obviously cannot consult in the way that we would normally do when there is more time. However, as I made clear on the first and second orders, and now this, there has been a degree of consultation between the IPO and others. If the noble Lord will bear with me, I will expand on that in a letter. The important thing is that we are just dealing with the no-deal option here. When it comes to further arrangements, more consultation will obviously be necessary. I know that the noble Lord has particular concerns. He has come to see me and has been talking to my officials. In the event of there being a deal, we will want to make sure that we continue with those discussions to make sure that we get this right.
Lord Warner
I am sorry to be difficult, but I am still trying to grapple with this. Are the Government actually leaving it to the civil servants to decide how to do the consultations individually, regulation by regulation? Or is some kind of guidance being used for this raft of regulations? Can we be clear whether there have been any directions or guidance to them, or have they been left to make up their own arrangements according to each set of regulations?
Lord Henley
I ought to make it clear that the IPO discusses these matters with DExEU to agree an approach. We want to make sure that there is a similar approach across Government. I can expand on that in any letter I write to the noble Lord. It is not just a matter for this department or that one, as the noble Lord would put it. I am now going wide of my brief, but there is a degree of consistency when dealing with the no-deal regulations to make sure that we get this right. I see that the noble Lord, Lord Stevenson, is itching to get to his feet, so I will give way, but I agree to write to the noble Lord on this point.
Lord Stevenson of Balmacara
I have read similar passages in the SIs from the Treasury which were due to—but will not—be discussed this evening. They reflect a different approach, which the Minister mentioned he would feed back to officials in due course. He talked about an all-of-Government approach to this, but that has not been borne out by what we have in front of us. I will be interested to see the letter which explains what is happening, particularly in relation to the department for which he is responsible. In fairness, that is all he can answer for, but if it is possible to add to that a wider brief about what is happening more generally, Ministers in other departments would find it interesting.
The second point is that I am sure these issues are not being raised on the particularity of these SIs alone. Surely they are being raised because what we are concerned about here is that the Government cannot do their job properly in regulating for the future if they do not have the trust and enjoy the confidence of the sectors that they are engaging with. Here we are in a situation where some advice is being taken from some people, and some are being labelled as “trusted” while others are therefore labelled as not trusted. I do not think this is a very good basis for going forward, and I wonder if the Government might like to reflect on that.
Lord Henley
My Lords, I will certainly look at what the Treasury is recommending. As I say, we have consulted DExEU. I can certainly give an assurance that all those whom we consult will be trusted. I am sure my noble friend Lord Deben would be the first to admit that he was possibly being mischievous when he tried to imply, merely because the word “trusted” appeared in one Explanatory Memorandum but not in another, that there was some element of a lack of trust by this Government. If any noble Lords think that is the case, I would thoroughly refute it.
Lord Tyler (LD)
The Minister said just now that the reason why he could not be confident of the extent of the consultation was the shortness of time. As I understand it from the Explanatory Notes, the major issues that were going to be addressed in this particular statutory instrument were laid out in the technical notice produced by the IPO back in September of last year, so there have been four months where presumably the main issues have been subject to consultation. That is not really a shortness of time; there was quite a lot of time in those four months for the consultation to take place. When he is addressing this issue in his letter, I wonder if he will be able to address why he thinks that the shortness of time in this case has caused so much difficulty in making the consultation as full and comprehensive as it should be.
Lord Henley
I will certainly address that in my letter and ensure that the noble Lord receives it.
I turn to the question of jurisdiction. The noble Lord, Lord Clement-Jones, asked which court has jurisdiction if the validity of the original trademark is challenged. We have made provision as to how pending proceedings before the UK courts on exit day will be dealt with: they will continue on the basis of the EU regulation. New cases brought after exit day will be dealt with by courts in the individual remaining member states.
Lastly, I turn to the point made by the noble Baroness, Lady Bowles, about the Paris convention, a point that I think she described as appealing to lawyers. Well, here is one lawyer that it does not appeal to because I do not particularly understand it. Again, it will have to be dealt with in subsequent correspondence but I am advised that the UK application will in addition enjoy the priority right claimed by the EU trademark application. I hope that helps, but if I can expand on that matter then I shall do so.
I was about to move the Motion but I can see that I am not going to be allowed to, so I will give way for one last time to the noble Lord, Lord Clement-Jones.
Lord Clement-Jones
I am deeply grateful to the Minister. I did not really think that his answer on the jurisdiction point was completely comprehensible. I hope he is going to include it in the letter that he writes because I am not sure about the exit date that he was talking about. He seemed to be saying that a different jurisdiction applied post the exit date as opposed to pre the exit date. I must admit that that is not entirely clear to me because the comparable right, which is derivative, is designed to spring up precisely after the exit date. I would really like to see a full explanation in his letter.
Lord Henley
For once, my Lords, I thought the noble Lord had said that my explanation was completely explicable but I imagine that he said it was inexplicable, so I will certainly include that in the letter that I write. I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
The Question is that the Grand Committee do consider the Trade Marks (Amendment etc.) (EU Exit) Regulations 2018.
The Deputy Chairman of Committees
My Lords, I must remind the Grand Committee that a single call of “Not content” has the effect of negativing the Motion. With that in mind, I put the Question again.
House of Lords
Death of a Member: Viscount Slim
The Lord Speaker (Lord Fowler)
My Lords, I regret to inform the House of the death of the noble Viscount, Lord Slim, on 12 January. On behalf of the House, I extend our sincere condolences to the noble Viscount’s family and friends.
Retirement of a Member: Lord Mogg
The Lord Speaker (Lord Fowler)
My Lords, I notify the House of the retirement with effect from today of the noble Lord, Lord Mogg, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I should like to thank the noble Lord for his much-valued service to the House.
Brexit: Agriculture
(5 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wigley
To ask Her Majesty’s Government what representations they have received from the farming unions about the impact of Brexit on agriculture.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, I declare my farming interests as set out in the register and my membership of the National Farmers’ Union. Defra Ministers and officials are engaging fully with representatives from the UK’s farming unions. Farming organisations stress the importance of: vibrant domestic food production; safeguarding our world-leading animal welfare standards; opportunities for exports; and ensuring that the UK takes the necessary steps to secure a deal with the EU. The Government share those priorities.
Lord Wigley (PC)
My Lords, I also declare my interest as a fully paid-up member of the Farmers Union of Wales. Do the Government accept that a no-deal Brexit would be a disaster for Welsh hill farmers, 90% of whose lamb exports go to European Union markets, which would be killed by tariff barriers? Does the Government’s no-deal Brexit emergency package include provision for intervention buying of lamb at a fair price in the event of a post-Brexit market failure or will the hill farmers, along with their lambs, be slaughtered on the altar of a no-deal Brexit?
Lord Gardiner of Kimble
My Lords, I repeat that the draft Brexit withdrawal agreement will ensure there are no hard barriers on the day we leave the European Union. I agree with all the farming unions. That is what the Government are working on: to get a deal that ensures frictionless and tariff-less trade. If it were to come to no deal, clearly there would have to be discussions about how these matters could be managed. But there is no doubt about it: a no-deal scenario will cause turbulence in the short term for food producers and for farmers.
Lord Anderson of Swansea (Lab)
In his list of concerns, the noble Lord failed to mention one key concern of farmers: the ability to continue to recruit people from the European Union to work on our farms after Brexit. How does the Minister allay those fears?
Lord Gardiner of Kimble
My Lords, there are of course other priorities and issues for both the Government and the farming unions. I agree that it is important that there is access to labour. Such matters are being considered across government; we recognise their importance not only for the farm labour force but for vets and others. The advance of agritech will in the longer term make a significant difference to the way in which we all farm.
Lord Cormack (Con)
My Lords, does my noble friend acknowledge that the Secretary of State’s speech at the Oxford conference, where he recognised the real problems that would be caused by no deal, caused considerable comfort in farming circles? Is not the logical consequence of this that the Secretary of State makes it abundantly plain that he will be no part of any Government that would accept no deal?
Lord Gardiner of Kimble
My Lords, my right honourable friend made a number of very important observations about the future of farming at the Oxford Farming Conference, not only in the long term but in the short term because of Brexit. In his words, he agrees that the deal before the other place is not perfect, but let us not put perfection in the way of the good. That is why he actively supports the deal.
Lord Morris of Aberavon (Lab)
My Lords, despite the government statement on the level of farm support to 2020—and 2022—this has been a period of unparalleled anxiety for the members of the farmers, union that I served as a young man, as its legal adviser in Wales. This House’s Delegated Powers Committee delivered a hammer blow in October 2017, criticising the Agriculture Bill for transferring European powers to Ministers, bypassing the devolved Administrations. Specifically, when do the Government intend to carry out their undertaking to respond within the agreed period to the committee’s report?
Lord Gardiner of Kimble
My Lords, that is an interesting observation from the noble and learned Lord, because I saw Lesley Griffiths from the Welsh Government in passing only this morning. There is a very important continuing dialogue with all the devolved Administrations—agriculture is devolved, of course—and that is why, when the Agriculture Bill comes to your Lordships’ House, it will have elements which relate to Wales, and indeed Northern Ireland, alone. I will take away what he said, because my understanding is that there is very close collaboration, which is essential, between the UK Government and all devolved Administrations.
Lord Trefgarne (Con)
My Lords, what steps are proposed to secure the disposal of the large quantities of plastic waste generated by agriculture, given that both European and Far Eastern destinations for this problem have now closed?
Lord Gardiner of Kimble
My Lords, my noble friend raises an important element: we want to enhance the environment. Clearly we must deal with the use of plastic better, whether in industry, agriculture or our own use, and have recyclable, reusable objects. I should also say that, as announced in the Clean Air Strategy this morning, we need to collaborate with farmers to improve the ammonia situation as well.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, despite the words of the Secretary of State at the Oxford conference, no deal is now a very real prospect. How do the Government propose to ensure that the Secretary of State, despite his words, will be able to make all the necessary arrangements to protect both farmers and food supplies?
Lord Gardiner of Kimble
Of course, that is precisely why there has been a border delivery group working across Whitehall since March 2017. It is working with the port and other transport operators to ensure, as a priority, that we have the materials we need, including medicines and so forth, but also a free flow of traffic. It was interesting that the manager of the Port of Calais referred to the fact that it is putting much more effort and many more people into ensuring this free flow of goods, which is of course at the back of why we want a deal.
Baroness Jones of Whitchurch (Lab)
My Lords, does the Minister understand why it is a priority for the farmers’ unions that there should be a guarantee that future food imports in the UK will have the same animal welfare and environmental standards as those which currently apply? If he agrees with that priority, will he undertake to put forward an amendment to the Agriculture Bill to make that commitment a legal requirement?
Lord Gardiner of Kimble
My Lords, having declared my farming interests, of course I believe that it is important that farmers produce food of the highest standard for home and abroad, and that this should never be compromised. We will not water down our standards on animal welfare in pursuit of trade agreements, and that is precisely why we have transposed the EU Council directives on, for instance, hormone-treated beef and chlorine-washed chicken into the statute book. When we leave the EU, that will be the law.
Yemen: Humanitarian Situation
(5 years, 10 months ago)
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Lord Ahmed
To ask Her Majesty’s Government what assessment they have made of the humanitarian situation in Yemen.
The Minister of State, Department for International Development (Lord Bates) (Con)
My Lords, the humanitarian situation in Yemen remains the worst in the world. It is imperative that the parties act in good faith to implement the Stockholm agreements and UN Security Council Resolution 2451. Any military escalation must be avoided, and Hodeidah and Saleef ports and onward supply routes must be kept open. Alongside our diplomatic efforts to end the conflict, we continue to respond to the humanitarian crisis financially, through our £170 million in aid this year.
Lord Ahmed (Non-Afl)
My Lords, I thank the Minister for his reply. The Iranian-backed Houthi drone attacks killed top military personnel last week, and Saudi-led coalition airstrikes supported Mansur Hadi’s Government in Hodeidah and Taiz. As he has mentioned, the ceasefire talks have not resulted in anything. Eighty-five thousand children have been starved to death, and 80% of the population are in need of aid. Ten million people are about to starve in Yemen. Will the UK diplomats tabling a Security Council resolution—this week, we hope—warn both Iran and Saudi Arabia not to have their proxy war, which is killing children and innocent civilians, in Yemen?
Lord Bates
The noble Lord is right to focus on the humanitarian situation. It is the worst in the world—a crisis. Ten million are one step away from famine, and there are massive cholera outbreaks. It is a dreadful situation. The drone attacks, and breaches he has referred to, continue to exercise concern. The UN redeployment mission there is headed by General Cammaert, who is experienced in these areas. He is working with the Government of Yemen and the Houthi forces to try to ensure that, initially in Hodeidah, there is peace and it holds, as that is where most of the supplies come through. It remains an immensely fragile situation, and the UK, as penholder at the UN Security Council on Yemen, will continue to do everything it can to support the peace efforts.
Lord Howell of Guildford (Con)
Does my noble friend recall that back in October the UN co-ordinator said that between 12 million and 13 million people would starve in Yemen? Since then, we have had the Stockholm agreement; can he update us on where that has got to? Has the airport in Sanaa been opened? Is there evidence that the Houthis have been manipulating the aid provided? Will the Hodeidah ceasefire hold, or is it breaking down? Are there other plans to reconvene that Stockholm agreement if the present one begins to be pulled apart?
Lord Bates
Stockholm is a process, not an event, so it needs to be ongoing. The situation in Hodeidah remains fragile, but we believe there is still a commitment from all parties to keep it open. Yemen is in this predicament because it relies so heavily on imports of food and fuel to serve its population, through the Red Sea ports. The latest figures we have for December show that 81% of food and 89% of fuel managed to get through. That is a reason for cautious hope, but it remains fragile, and the consequences of this not holding are well stated.
Lord Lea of Crondall (Lab)
My Lords, how far does the noble Lord think it is possible to reconcile deadlock in the UN and building on the mission’s developing role, such as keeping the Sanaa-Hodeidah road open and so on?
Lord Bates
The way to do that is by seizing on every element of hope. Hope was represented in the outcome of Stockholm. That was then consolidated into a UN Security Council resolution that was not blocked by other P5 members. We have international agreement. There is reason for hope. We must put all efforts behind trying to secure it.
The Lord Bishop of St Albans
My Lords, as well as the huge famine—I congratulate Her Majesty’s Government on what they are doing to respond to it—we are also seeing unfold before our eyes a huge medical crisis, with possibly the largest cholera epidemic in recorded history. Will the Minister update us on what plans and action are being taken with our partners to bring in medical help urgently to try to address this unparalleled, Dickensian level of preventable disease?
Lord Bates
The right reverend Prelate is absolutely right that this is the largest cholera epidemic. Again, one small, cautious reason for hope is that, from its peak, that outbreak has begun to reduce due to heroic and selfless actions by humanitarian workers on the ground and by organisations such as the World Health Organization and UNICEF, funded in part by the United Kingdom.
Baroness Sheehan (LD)
My Lords, the drone strike last week at the Al Anad air base showed the need to try to broaden the ceasefire agreement to cover the whole of the country, but this would require a resumption of the talks between the Yemeni Government and the Houthis. Does the Minister think that the likelihood of that happening has gone up since the US’s announcement in the last few hours that it will support the political process? Secondly, can the Minister assure me that the grain in the mills in and around Hodeidah will not be lying there unused much longer but get out to those starving families across the country?
Lord Bates
Yes, I can give that assurance. That is what we want to see. The Red Sea mills were a crucial part of why we wanted the ceasefire to start. We are at small beginnings. The situation is catastrophic, but there is a glimmer of hope. We must all work towards it.
Islamophobia
(5 years, 10 months ago)
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Baroness Finn
To ask Her Majesty’s Government what assessment they have made of the potential consequences of adopting an official definition of Islamophobia.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, we remain deeply concerned at hatred directed against British Muslims and others because of their faith or heritage. This is utterly unacceptable and does not reflect the values of our country. We know that some have suggested that establishing a definition of Islamophobia could strengthen efforts to confront bigotry and division. Any such approach would need to be considered carefully to ensure that this would have the positive effect intended.
Baroness Finn (Con)
The formal definition of anti-Semitism is carefully but narrowly drawn and has helped to focus minds and resources on this pernicious hatred. How will my noble friend ensure that a formal definition of Islamophobia, if introduced, has a similar impact but is narrowly and carefully drawn so as to avoid creating a wider threat to free speech?
Lord Bourne of Aberystwyth
My Lords, it would be useful for my noble friend to look at the debate we had before Christmas, on 20 December, on this issue. I will certainly provide her with the link. It illustrated some of the difficulties that exist. It took some time to establish the definition for anti-Semitism. As I said, we would need to proceed with great care. In the interim, there is clearly an issue of hatred and bigotry directed against Muslims that we must confront.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we have not yet heard from the Cross Benches.
Lord Singh of Wimbledon (CB)
My Lords, there is no common statistical basis whatsoever suggesting that members of any one faith suffer more discrimination than others. Emotive words like Islamophobia are simply unhelpful pleas for special consideration. Does the Minister agree that the Government have a basic responsibility to ignore all special pleading and ensure that all faiths and beliefs are equally protected?
Lord Bourne of Aberystwyth
My Lords, I would first say to the noble Lord—who contributed to the debate on this issue on 20 December—that of course all faiths, heritages and races should be protected, and indeed are protected. I would also gently say to him that the statistics show numerically that there are far more attacks and bigotry in relation to the Muslim community than any other.
Baroness Hussein-Ece (LD)
My Lords, the Minister has acknowledged that hate crimes against Muslims have risen dramatically. The Government’s own figures show a rise of 40%, almost equal to that of anti-Semitism. Will the Government accept that it is becoming increasingly normalised? We have commentators and columnists who think it is perfectly proper to argue that racism and hate speech against Muslims are acceptable and, in fact, should be normalised. Will the Government carefully consider the definition from and work done by the APPG on British Muslims, after consulting 800 community organisations, 80 academics and more than 60 parliamentarians, on offering that protection, and send out a strong signal that they intend to offer some protection? It is not special pleading; it is about reducing hate crime in the same way as for British Jews.
Lord Bourne of Aberystwyth
My Lords, I share the ambition to ensure that the incidence of hate crime comes down. There is evidence of better reporting; that is one reason, although not the only reason, why the statistics show an increase. It is worth mentioning that. It is important to confront this wherever we look. The noble Baroness will be aware that we recently renewed the hate crime action plan, which is now going forward to 2020. I very much value the work done by the APPG and by others on this issue. Of course the Government will look at this in the round, as we will the other evidence and the very valuable debate we had just before Christmas.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, will the noble Lord go further and join me in congratulating the All-Party Parliamentary Group on British Muslims on producing this report and its definition of Islamophobia? It makes clear that Islamophobia is rooted in racism—racism that targets Muslimness or perceived Muslimness. Its report and definition have been endorsed by British Muslims for Secular Democracy, the Muslim Women’s Network UK, the Muslim Council of Great Britain and, as the noble Baroness, Lady Hussein-Ece, said, by more than 800 other organisations. Will he commit to working inside government to get a definition adopted without delay?
Lord Bourne of Aberystwyth
My Lords, I say to the noble Lord, who I do not think was present at the debate in question, that there are split views on this issue. It is not quite as straightforward as he suggests. Of course we want to work with the APPG and others, and we are certainly committed to any way of confronting and bringing down bigotry and hatred. But I want to make sure that we get this right, and that means not rushing it. I appreciate that the noble Lord will be part of that endeavour and look forward to his support in that.
Baroness Uddin (Non-Afl)
My Lords, I say to the Minister, with due respect, that there was not such division as he suggests. However, as he may be aware, those of us who have spoken in the debate since the Islamophobia debate on 20 December have received some unsavoury intimidation. Does he agree that any definition that seeks to protect a community must be rooted in that community? Does he therefore agree that any attempts to undermine the community’s agency is in itself a part of that problem? To the House, I say that those of us who have worked tremendously hard over years and decades will not tolerate any division between us while we fight Islamophobia, other prejudices and anti-Semitism.
Lord Bourne of Aberystwyth
My Lords, first, if the noble Baroness goes back to that debate, she will find that there were certainly Muslim contributors who had different views. I am not saying that they did not want to confront Muslim hatred and Islamophobia—they did—but there are certainly different approaches that we would have to look at. I share her view about making sure that, in a shared endeavour, we bring down anti-Muslim hatred and Islamophobia and confront them both.
The Archbishop of York
My Lords, on the overall question of definitions, sometimes it is much easier to do things when we handle them as concepts. In the Stephen Lawrence inquiry, we struggled with the question of racism, particularly when it is found in institutions, so we ended up saying: “The concept that we apply to this case of institutional racism is this”. That is much easier than a definition because a definition can restrict what you want to say. Is it not better to learn from what the Stephen Lawrence inquiry did? We in that inquiry also struggled with the question of homophobic incidents in many other places. In the end, we adopted the word “concept” as opposed to a definition, because a definition is always contingent on who speaks and who does what. May I advise that it might be worth while visiting the way in which the Stephen Lawrence inquiry handled the question of institutional racism?
Lord Bourne of Aberystwyth
My Lords, the most reverend Primate is right and I take his advice on this very seriously. There is obviously major work to be done here and I will certainly revisit issues relating to the Stephen Lawrence inquiry and how we learned from what came forward there. It is vital that we get this right; I am sure we all share in that ambition. It is about making sure that we do it, not about rushing to judgment and coming to a set conclusion without looking at the evidence. I am keen to see the evidence and to act on it.
Immigration: Removal Centres
(5 years, 10 months ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government how long the longest serving person currently detained in an immigration removal centre has been held in detention; and what is the longest time a person has been so detained since 2014.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, unpublished management information shows that the longest-serving person currently detained has been held for three years and that the longest period of detention since 2014 is six years and eight months. That individual was released in October 2017. In each case the detainees were foreign national offenders convicted of very serious offences, including serious violence and serious sexual offending. I am confident that our reforms will prevent such long periods of detention being necessary, while not lessening our determination to remove foreign national offenders.
Lord Roberts of Llandudno (LD)
My Lords, does the Minister accept that only we and the Republic of Ireland have no maximum timeframe for detention? Does she also accept what the United Nations action group on arbitrary detention stated:
“Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”?
Is this not only indefinite detention but indefinite hopelessness? Should not we in the United Kingdom agree with the remainder of Europe, apart from Ireland, that we will put an end to it so that everybody will know exactly what the prospects are for their release?
Baroness Williams of Trafford
My Lords, the law does not allow indefinite detention. It is our view that a fixed, arbitrary time limit on detention would actually serve only to encourage individuals to frustrate the removal procedures in order to reach a point at which they would have to be released.
Baroness Bryan of Partick
My Lords, I apologise to the noble Lord, Lord Roberts, for that rush of enthusiasm. I visited Dungavel detention centre in south Lanarkshire when it was a prison and as prisons go, it was not such a bad place. Since it became a detention centre, however, it has changed considerably. It is surrounded by barbed wire and looks much more like a prison for serious offenders than a place to house people who could be vulnerable and could be there without knowing how long they are to be detained. Why has it been necessary to make conditions worse for asylum seekers than they were for prisoners?
Baroness Williams of Trafford
I refute the point that conditions for asylum seekers are worse than for prisoners. The detention estate has reduced by some 40% in recent years, so we are holding far fewer people in detention, and 95% of individuals who are asked to leave the country because they are not here legally do not actually find themselves in the detention estate.
The Earl of Listowel (CB)
My Lords, can the Minister say whether the welcome progress made in reducing the numbers of families in immigration removal centres during the coalition Government has been sustained? How many such families are still detained? Would she care to write to me on this point?
Baroness Williams of Trafford
I will write to the noble Earl with exact figures, but I know that the number of families has definitely reduced in the detention estate and they are separate from individuals in the detention estate.
Baroness Lister of Burtersett (Lab)
My Lords, once again the Minister insists that there is no indefinite detention in law. The dictionary definition of “indefinite” is “without fixed or specified limit”. Can she tell us what the fixed or specified limit is in law on general detention?
Baroness Williams of Trafford
The other definition of indefinite is “unlimited” and I cannot find any examples of someone who has found themselves in detention for an unlimited period. For the reasons I outlined to the noble Lord, Lord Roberts, we do not want to put an arbitrary time limit on detention.
Lord Scriven (LD)
My Lords, Stonewall and the UK Lesbian & Gay Immigration Group brought out a report called No Safe Refuge, which shows that those claiming asylum based on their sexual identity or gender identity who are put in detention suffer from prejudice, physical and sometimes sexual abuse. What is the Minister doing to ensure that this does not happen? Will she follow best practice from across the world that uses non-detention approaches for such vulnerable people?
Baroness Williams of Trafford
Of course, that was something that Stephen Shaw recommended, and an R35 assessment is made before someone goes into the detention estate. I read that report, although unfortunately it was not attributed; I spoke to LGBT organisations about it and we worked through some of the issues. Also, as the noble Lord will know, we have worked with LGBT organisations extensively, including Stonewall, to ensure that conditions and training within the detention estate are sensitive to LGBT people who find themselves in detention.
Brexit: Withdrawal Agreement and Political Declaration
(5 years, 10 months ago)
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Lord Callanan
That this House, for the purposes of section 13(1)(c) of the European Union (Withdrawal) Act 2018, takes note of the negotiated withdrawal agreement laid before the House on Monday 26 November 2018 with the title Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community and the framework for the future relationship laid before the House on Monday 26 November 2018 with the title Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.
Relevant document: 24th Report from the European Union Committee
Baroness Goldie (Con)
My Lords, before we commence the adjourned debate, I observe that we have a lot of business to get through today, and I respectfully remind contributors from the Back Benches that the advisory time limit is six minutes. With the greatest of gentleness, I point out that when the clock shows “6”, this has a certain significance: it means time is up.
Lord King of Bridgwater (Con)
My Lords, as we embark on the third day of our deliberations, and the House of Commons approaches its penultimate day, I think there is not a single Member of your Lordships’ House who would not agree with the Prime Minister’s comment today that we are in uncharted waters. I would take that analogy further and say that the ship of state is at the moment adrift in a dangerous sea, with storm clouds building and with some dangerous rocks around.
If I talk about dangerous rocks, I refer noble Lords to today’s copy of the Times: just look at the stories of the world in which we live. We have President Trump threatening to devastate the Turkish economy if they invade the Kurds. We have the al-Qaeda affiliate that has now occupied or is moving on Idlib and taking over that province, so that threat has reappeared on the scene. We have the continuing drama of the Sunni-Shia conflict and the conflict in Yemen, which so tragically continues, and the continuing drama involving Mr John Bolton, who is reported in the Times today to be considering that the United States might bomb Iran, in retaliation for an attack that it thinks was carried out on US facilities in Iraq.
At the same time, closer to home we have the rise of the far right. We have the AfD party in Germany, which I see has already decided to adopt the policy of abolishing the European Parliament and is considering whether to launch in its election campaign, for the upcoming European elections, a policy of Dexit—which I suppose stands for Deutschland exit and Germany leaving the European Union.
The instability all around could not be greater. It has coincided with the shutdown of the American Government. Many of your Lordships will have received an email today, as I did, to say that the US minister counselor in the US embassy is unable to come to the House today because, while the shutdown goes on, she is not now allowed to interact with public meetings. Presumably, the great diplomatic scale and force of the United States around the world at the moment is pretty well paralysed.
To top it all, we also have reports from a new activity, of which I had never heard, called Redfish, which appears to be a Russian-sponsored invasion of social media. Using the ignorance of those people taking part in it, Redfish promotes damaging videos and YouTube presentations that are watched by anything up to a quarter of a million people. It is, presumably, a re-creation of what actually happened in the US presidential election and also, I dare to suggest, in our own referendum campaign—namely, of Russian interference and trying to achieve their own policy objectives in that way.
At the same time, we move against an unchanging background of mass migration of people and the threat of climate change, which raise enormous challenges. Against such a background, it seems to me that it is a matter of urgency for this country no longer to be lost and uncertain and failing to give the leadership that we should to our own people and to our country. We need to come together to resolve Brexit.
Everybody will know that I am a remainer. I believe that the outcome of the referendum was a tragedy, but I do not believe that it is possible to go back now. Europe has moved on. We wanted a larger, but looser, Europe. It is not looser; it is enlarged, but it has continued to try and run in the same centralised way as before. There is more majority voting. We would be stuck with the freedom of movement, and I believe that, if we did try to go back, we would be under pressure to join the euro and Schengen as well.
I look across the Chamber and pay tribute to the noble Baroness the Leader of the Opposition. She made a very good opening speech and managed to criticise everything that we are trying to do. We know that the Motion that she has tabled says that the Opposition are against no deal and against this deal. We wait to hear what they are in favour of—because there is of course a complete silence. That was cleverly and accurately identified by Mr Andrew Marr in the programme with Mr Jeremy Corbyn yesterday. Mr Corbyn was calling for an election, and Mr Marr immediately said, “Well, if you have an election, what are you putting in your manifesto about the issues over Brexit?”—to which there was a deadly silence.
There is plenty to criticise in the proposed deal. Anybody can find difficulties and issues that do not entirely meet the objective. However, overall, the main objectives have been met. When we discussed this in the days before, in the debate that was truncated, it was the worry about the permanency of the backstop that seemed to concern most people. There have been improvements on that, and perhaps we will hear a further Statement later today that will help to clarify that.
I want to make one point, in advance of my noble friend leaping to her feet. It is simply this. The best speech I have heard in these debates was made by the most reverend Primate, whom I am delighted to see in his place. He said that we have a moral responsibility. Of course it is right that the other place has to take the decision, but we have a moral responsibility to advise—and this time we want to go forward as a country. Too much anger and too much hatred have developed over this. We need to resolve this matter now. We need to respect the majority decision, but we need respect for the minority as well. I hope that those on the Benches opposite will see that the opportunity to come together, agree a deal and go forward is in the national interest. I hope that the noble and learned Lord, Lord Goldsmith, will pick up that opportunity.
Lord Goldsmith (Lab)
My Lords, I do not think that is for me to do, but no doubt my noble friend Lady Hayter will comment on what the noble Lord has said. He knows that I have huge respect for him. I want to touch on the legal issues, I am afraid, as I did when I spoke on 5 December.
The principal point I made then was that the so-called temporary arrangements could not be relied upon to be temporary under the wording of the withdrawal agreement and political declaration. No amount of aspiration that the Northern Ireland backstop would be temporary could achieve that without an actual change to the legally binding language of the withdrawal agreement, and the only way of changing the effect of the legally binding withdrawal agreement was by another legally binding agreement or amendment. Despite the Prime Minister’s pilgrimages to Brussels, no such legally binding agreement, or amendment to the withdrawal agreement, has come about. Further warm words of aspiration will not change the position.
As I said then, noble Lords may be prepared none the less to rely on those expressions of hope and take the risk that in the end it will all be all right. I also said that for myself I did not believe that comfort could be taken from legal arguments—for example, about the best endeavours obligation and the arbitration arrangements. I need not elaborate further on those arguments, which are set out in the speech I made. Nothing has changed, in my view.
There is, I suspect, a new argument to be advanced by the Government that reliance can be placed on Articles 60 or 62 of the Vienna Convention on the Law of Treaties. As to Article 60, under which a treaty could be terminated for “material breach”, precisely the same problem arises from proving a breach of the general good faith obligation, particularly when that obligation is qualified—a point I did not make before—by the following words:
“and in full respect of their respective legal orders”.
Nobody has explained quite what that means, but to me it would mean that, so far as the United Kingdom is concerned, the respective legal order of the United Kingdom is that Parliament’s will must be followed, and in the European Union it is not much different so far as the European Parliament is concerned. That seems to be an additional reason why it would not be possible to say that good faith had not been followed in the negotiations.
As to Article 62, under which a treaty might be abrogated by,
“a fundamental change of circumstances”,
it is clear that the entry into force of the backstop can hardly be described as a fundamental change of circumstances, as it is expressly foreseen and envisaged in the withdrawal agreement. That is not what “fundamental change of circumstances” means. That is very clear.
Today we have seen the letter from the two Presidents—President Juncker and President Tusk—and the letter from the Prime Minister. I do not see them changing the legal situation on the backstop; nor, I see from the Attorney-General’s letter, does he. He says in paragraph 2 that,
“they do not alter the fundamental meanings of its provisions as I advised them to be on 13 November 2018”.
Your Lordships will have seen that very clearly.
The letter from the Presidents does repeat warm words. It also repeats—this is most important—the legally correct statement that if the backstop is triggered it would apply,
“unless and until it is superseded by a subsequent agreement”.
Those are really important words. They mirror precisely what is said in the withdrawal agreement, in particular the final sentence of paragraph 4 of Article 1, and much reliance was placed on that, rightly, by the Attorney-General in the letter that the House has seen. That is the fundamental point. The position is that, unless and until a subsequent agreement takes place, the backstop will continue to exist. It may be that a political agreement can be reached. That is not the point that I am dealing with.
It is clear, of course, that the EU was pressed to give Mrs May something, but this is the best it has produced, and it says more by what it does not say than by what it actually says. Only a new agreement at the end of the discussion on the political declaration will bring the backstop to an end. That is what I wanted to say about the events that have taken place since we last debated this issue.
I want also to mention briefly the other legal topic, which has been touched on in previous speeches to some extent, which is in relation to issues of justice and security. On security and criminal justice, reference has been made already, for example by my noble friend Lord Browne of Ladyton.
But so far as civil justice is concerned—and commercial matters—there is much less. As the House has already been told, there is nothing in the political declaration that calls for co-operation in that field. Nor will it be a solution, in the critically important area of enforcement and recognition of judgments, to rely on the Lugano treaty. I could explain the detail of that but, essentially, there were difficulties in and problems with the original Brussels convention, including the rather charmingly named Italian torpedo—not a form of sandwich, as many may think—it gave rise to. That was fixed, but not in the Lugano treaty.
Finally, I refer to the absence of any real provision in relation to legal services. I declare an interest as a practising lawyer and a member of a firm that practises across boundaries. The arrangements that there are in relation to legal services in future are far from satisfactory.
Lord Teverson (LD)
My Lords, soon after the referendum, a number of my colleagues from across the House and the other place and I received a courteous and timely invitation to a lecture at the Norwegian embassy. Delivered by a young professor, it was about the lessons learned by Norway in negotiating with the European Union as a third party. The professor talked about around eight principles, but I remember this one best: he said very clearly that European Union member states were never unified on what they discussed and agreed among themselves, but when it came to dealing with third parties, there was always total unity, which never changed. Among many others, that seems a lesson that the Government should have learned during the past two years of negotiations.
A key lesson is that 16,141,241 people voted to remain but were written out of history and out of any interest from the Government almost immediately. Today, that is still the rhetoric of the Government. They have done absolutely nothing over the past two years to bring this country together. It required a private citizen and the Supreme Court, not Parliament, to get us all involved in the Article 50 process. We saw highly questionable ministerial appointments to the Foreign Office and DExEU, both individuals having now resigned and given up on the course on the way through. We know that when we used Article 50 to serve notice to the European Council, we had no plan whatever, just a number of red lines written down, which very much restricted future negotiations. We agreed immediately the schedule of proceedings for the agenda during that Article 50 period, which we are still in; without question, that put us at an immediate disadvantage. We still hear loose language, the most recent example of which described EU citizens of this country as “queue-jumpers”; I find that inexcusable and disgraceful. We have had two years of an elite EU team, as seen on the world stage, versus a shambles of amateurs. That is how this is seen across the globe. It gives me great grief as a proud European citizen of this country.
I want to get on to the question of where we go from here if this agreement is successful. We hear a great deal from industry about certainty. My unshakeable view is that, as we move into a transitional period—if we do so—there will be even greater uncertainty. We originally had 21 months, which the Government agreed with no question whatever, even though there is no chance of an agreement on that timescale—it could be 33 or 45 months under the withdrawal agreement. Let us remember: the Korean agreement took eight years; the Canadian agreement took eight years; the Japanese agreement started in 2013 and has still not been implemented; the United States deal could not be agreed. Only Greenland’s withdrawal from the EEC was agreed in a period of some three years, and was far less complex than anything we are going to enter into.
It will be complex because our agreements will include, I hope, services, security, data and a number of other areas not included in many of these deals. We also have a whole host of other issues that will be brought up by EU member states when we are a third country—not least by Spain on Gibraltar, which we have been warned about. There will be further issues around the Irish border and fisheries, which interests me particularly. It is certain that our fishermen and that industry will be sold out, as the European Union has made it quite clear that it will not agree trade terms of any sort—on fisheries and elsewhere—unless access and quota arrangements are maintained.
It is also clear that there will be the same red lines from the European Union on the single market and the four freedoms. We are certain that those issues will still be there. We also have to reach agreement with some 36 legislative Assemblies, not least the European Parliament, which will take considerable time.
This agreement seems to me not one that provides certainty to industry or to the political community, but one that provides another period of uncertainty where we do not know where we are going and where we cannot agree deals elsewhere in the globe until we know our relationship with Europe. What we do know is that there will be very few trade deals done until we resolve our relationship with Europe, that there will be no freedom of movement for British citizens within Europe, and that this country will be impoverished.
Lord Hannay of Chiswick (CB)
My Lords, I am pleased to follow the noble Lord, Lord Teverson, and I agree with much of what he said. This is obviously a crucial moment for the outcome of this negotiation. It matters a lot to this country, and it matters a lot to this House. The delay in December was neither justified nor wise, compressing as it did a significant number of consequential decisions into a short space of time. But, alas, procrastination has marked the Government’s handling of this negotiation from beginning to end.
It is not for this House to determine the outcome. That is for the other place. But it is necessary that we should express a view—we should have our say. Merely taking note of a deeply flawed and deficient deal which the Government propose to this House would be hardly fitting.
The Prime Minister tells us that this is the best deal we will get. She may be right, within the parameters of those infamous red lines, which she imposed without any authority from the Cabinet, from Parliament or from the 2016 referendum. If you exclude continued membership of the customs union and single market from the outset, and you continue to demonise the European Court of Justice, that is what you get—and a pretty poor thing it is. Moreover, you get the backstop. I have now had two letters on that from the Leader of the House, for which I am most grateful, which seek to reply to my question as to whether anything that has been said since the Prime Minister reached agreement on the deal has actually caused the Attorney-General’s advice—that we cannot exit from the backstop unilaterally—to be varied.
The key phrases are now set out in the exchange of letters and the Attorney-General’s advice. The Juncker-Tusk letter says that,
“we are not in a position to agree to anything that changes or is inconsistent with the Withdrawal Agreement”.
The Attorney-General says that they—that is, all the things that have happened since December,
“do not alter the fundamental meanings of”,
the withdrawal agreement provisions,
“as I advised them to be on 13 November”.
That is pretty clear, you would think: it is a rather long way of saying that nothing has changed, but that is what it is.
The idea that exiting without any deal at all should be an even faintly acceptable outcome can surely not survive a reading of the economic analysis provided by the Government, the Bank of England and the NIESR. Finally, the Government have realised—as they did not when they first started to trot out the irresponsible slogan, “No deal is better than a bad deal”—that it is pretty disastrous. It must therefore be right for both Houses to state their categorical rejection of that outcome. It would be right, too, for the Government to state now that they will honour and act on such a rejection, and not play around with the false oxymoron of a “managed no-deal exit”.
The hard fact is that, if you look through the copious documentation we have now received, you will see not a single area of policy where what is now on offer can be said with any confidence to be better than what we have as a member. For prosperity, security and our global influence, we are clearly better off as a member. In most areas, the outcome is clearly negative. Can anyone seriously doubt that we will be less influential in Washington and Brussels, or in Beijing and Delhi, or that we will find ourselves with a much lower trepidation index—the measurement that determines whether other countries hesitate to kick you on the shins or to decline your representations? That is why I will not hesitate to vote for the Motion in the name of the noble Baroness, Lady Smith of Basildon, which is a clear but respectful message to the other place.
What happens if the other place votes tomorrow to reject the deal? The case for then submitting it to the electorate is, in my view, compelling. I have no liking for referendums, but it was the Prime Minister of the day, David Cameron, who forced that decision on us when he decided to play Russian roulette with one of our major national assets. I do not believe we can escape that trap without another public vote, particularly now that so much more is known about the consequences of leaving than was known in 2016.
Will such a vote be divisive? Of course it will. However, I believe that the outcome of such a vote, whichever way it goes, will be more likely to achieve closure than the agonisingly protracted negotiating agenda set out in the Prime Minister’s deal.
Lord Patten of Barnes (Con)
Like others, I return to the scene of the accident to discuss this deal. I do not think that I imagined hearing the Secretary of State for International Trade on the radio this morning say that it was the “least damaging” way of leaving the European Union. I thought that it was a pretty spectacular example of how to pay a compliment.
I will make two points about assurances and two points about threats. I have no difficulty accepting that the backstop is temporary—or that “temporary” is a word in every known European language. I am sure that we can find ever so many examples of the President of the Commission and the President of the Council smothering the word “temporary” in warm milk and honey. That is not really the point. The point was made with pellucid clarity during our aborted debate before Christmas, when my noble friend Lord Howard pointed out that under Article 50 we have the unfettered ability to leave the European Union, but we cannot leave the backstop without the agreement of 27 members of the European Union.
The second assurance touches on that. We are told that we should not worry about the future because everything is taken care of in the political declaration. However, the political declaration is a bucket list. If you look up “bucket list” on the internet, the first thing you get is “abseiling down a waterfall”. At least that is not in it, but everything else we could conceivably want is put into that bucket list—with no guarantee that any of it will be deliverable.
The noble Lord, Lord Krebs, made a remarkable speech before Christmas about the future of research and science if we leave the European Union under any terms, even with the backstop. There are no guarantees about what will happen to our research community and to universities in the future. That is why all the university leaders have written to us expressing their grave concern about what is happening.
I turn to the threats. The first threat, which has been touched on already, is the suggestion that if we do not accept this less than perfect—I think that is the polite way of putting it—deal to leave, it will be no deal. It will be what the Leader of the House of Commons called—as the noble Lord, Lord Hannay, said, this is a somewhat oxymoronic concept—a “managed no deal”. It will be managed presumably with all the competence we showed in dealing with the change in railway timetables last year; with all the competence, panache and swagger we showed in dealing with a drone at Gatwick; and with the competence we showed last week in managing a traffic jam in Kent—now there is a big thing to do.
I am sure that most members of the Cabinet agree with the Secretary of State for trade and industry, who said that it would be damaging to this country—and I cannot believe that the Prime Minister, too, does not believe that it would be damaging to us. So why on earth are they flirting with it as a way of trying to press us all into doing something which most of us think would be extremely unwise and would keep the debate about the European Union going indefinitely—because that is what the political declaration is all about?
The other threat is the idea that unless we vote for the Prime Minister’s proposal, or leave without it, the country will be divided for the foreseeable future. What the hell do we think the country is at the moment? I have never known it so divided. This is partly because of decisions taken to try to manage members of a part of the Conservative Party, my party, who have for years, with commendable fortitude—although I think they are wrong—worked away to get us out of the European Union. We could deal with the idea that if we vote for this deal on April Fools’ Day people will sit around on the village green singing “Kumbaya” and holding hands—or perhaps, in the presence of the right reverend Prelates, “Guide Me, O Thou Great Jehovah”—but the idea that this will end the debate is for the birds. I am afraid that this argument will pollute British politics and British society for a long time to come.
As I said, I recognise the fortitude, determination and intellectual honesty of some of my noble friends who have pursued this over the years. They have, to borrow from Iain Macleod, schemed their schemes and dreamed their dreams. But now we wake up to this terrible shambles—never glad, confident morning again. The trouble about civil wars—even civil wars in political parties—is that they do one hell of a lot of collateral damage: in this case not just to the Conservative Party but to the country. I feel passionately that in the days ahead we should do what we can to limit the amount of collateral damage. Even though we cannot do it completely and even though we recognise that there will be an impact on British politics for the foreseeable future, we should at least try to do it in a way that does not make this country poorer or less influential in the world, and in a way which will enable us to look our kids and their children in the eye in the years ahead.
Lord Davies of Oldham (Lab)
My Lords, leaving the European Community after more than half a century of membership is clearly an enormous and testing task and, as noble Lords have already indicated, the Government are scarcely showing themselves up to it. I am grateful to the noble Lord, Lord King, who indicated that we do this in the context of an international situation in which there are many shocks so that we are bound to find it difficult to make progress on certain aspects of international relations. Getting new trade treaties in this context is fraught with real problems. We all recognise that many international powers are talking rather more about protective tariffs than about opening up fresh opportunities for trade with the UK and economies like it. The challenge of coming through this process with any degree of success is enormous.
As a Treasury spokesman for my party in normal circumstances, I intend in this debate to concentrate on economic issues. At the end of the day, our fellow citizens look to Parliament and the Government to provide a context in which they can work successfully, earn what they are entitled to earn and get rewards from the economy. The great danger is that the Government are pursuing a strategy which puts that in doubt. I recognise that economic forecasting is much disparaged in many quarters, but we cannot discount the significance of so many sources of serious economic analysis which demolish the case for no deal. It should never have been on the agenda. The Government have a bounden duty to make sure that we do not leave the European Community with no deal. Sources that identify just what that would mean include the Governor of the Bank of England, who said that if there is no deal the country will suffer as much in the next decade as it has in the period since the great global financial collapse.
The search for no deal is the Prime Minister truckling to the small group of die-hard right-wingers in the Conservative Party who see some vista of great achievement the moment we are free from Europe. They turned their position in the rigid red lines which made it so difficult for the Prime Minister to achieve any reasonable deal with Europe. We may be the fifth-largest economy in the world, but we have considerable programmes at home at present. We can ill afford putting at risk some of our outstanding existing opportunities. I point out the obvious issue: we have played quite a considerable leadership role in the service industries in Europe, as we would expect, given our expertise and the significance of the service industries to our economy, but there is nothing in the proposals which are emerging under the Government’s scheme for any progress in that area.
It is quite clear that we have to think in very different terms. My party will emphasise that we intend to present proposals, when we have the opportunity, to participate in a permanent and comprehensive customs union with a British say in future trade deals and we will deliver a strong relationship with the single market to guarantee that the UK does not fall behind the EU in rights for workers and consumers and in the protection of the environment. We want a deal that puts jobs and the economic position first, and we trust that this House will support our amendment today against a background where we hope the other place will support progressive positions tomorrow.
Baroness Boothroyd (CB)
My Lords, I cherish my European citizenship and regret its loss when or if—dare I say it?—Brexit becomes law. I identified myself as a British patriot and a European when I went to Berlin and other war-torn cities on the continent with little more than £5 in my pocket at the age of 17. I stayed with social democrat families who welcomed me into their homes. Europe is part of my DNA; it transcends treaties and bureaucracy.
For a time, I sat in the European Parliament, but preferred Westminster. This is not the first time that the Tory party has torn itself apart on this issue. As Speaker of the Commons, I watched the Tory party tear itself apart during the Maastricht debates. I feared the worst when David Cameron allied his party with the far right in Strasbourg and even more so when he caved in to his right-wingers and media pressure by calling the 2016 referendum. He thought he would win but has said since that he did not mind losing. I did mind.
Theresa May, whose tenacity commands respect, has been struggling to keep her party together ever since. Her Government stumble from one expediency to another, unimpeded by a dithering leader of Her Majesty’s Opposition whose only consistency is evasion. The noble and learned Baroness, Lady Butler-Sloss, was right the other day when she related the current drift and national crisis to the period of 1940, but there is a major difference. At that time, the leader of Her Majesty’s Opposition gave leadership. He carried his parliamentary party with him and people in the country knew of his commitment and supported it—that is the difference.
I am not a devotee of referenda. I rather enjoy general elections, but general elections are not single-issue events—they cover a host of issues. A general election is not the way to settle the European question. After two years, we are now more aware of the minuses and pluses and the people must determine this single issue. I urge Back-Benchers in the Commons to reject the pretences of Ministers who say—I quote Dr Fox, the International Trade Secretary—that a second referendum would put us in,
“unprecedented territory with unknown consequences”.
We have been wandering in the wilderness since Mrs May lost her majority in the election. I wonder how high Dr Fox was flying when he dreamed that one up. In my book, if a democracy cannot be allowed to change its mind, it ceases to be a democracy.
When the Minister winds up, will he say what the Government are afraid of in refusing a people’s vote? In answering that question, will he please explain to young people who have reached adulthood why they do not have the right to be heard on an issue that our generation has manifestly bodged? Brexit will shape these youngsters’ futures for the next 50 years—not ours. I have no children or grandchildren; my quality of life will not be affected. I am all right, Jack. But what about the Jacks and Jills out there? Are they to be stripped of their rights on the whim of those who peddled rubbish in the referendum and are afraid to be challenged in another?
I was a government Whip when Harold Wilson was Prime Minister. He said that anyone who claimed that membership of the European Community was a black and white issue was either a charlatan or a simpleton. I leave your Lordships to adjudicate on that one. Which brings me to Mr Boris Johnson: his campaign bus did not proclaim, “Say yes to no deal”. We were promised an easy ride with a cash bonus thrown in. The question on the ballot paper did not ask us to choose between a hard or soft Brexit, a Canadian or a Norway-plus deal, or a deal that would separate Northern Ireland from the rest of the United Kingdom.
Nobody dreamed that we would be frantically preparing for worst-case scenarios. We are now paying the price for a referendum that was dominated by falsehoods. Brexiteers promised the world but ignored the social and political realities festering in our own country. Now, Parliament is convulsed, Whitehall is pulverised and Downing Street has become a drop-in for chilled wine and persuasive chats, while industry and business are alarmed and our friends and allies are bewildered. Who can possibly blame them?
In yesterday’s Sunday Express, Mrs May said:
“Some of you put your trust in the political process for the first time in decades. We cannot—and must not—let you down”.
But voters were let down—all of them. Both sides failed to focus on the issues that mattered most to them. Look at the Electoral Commission report. It said that many voters were unclear about the consequences of victory for either side and did not know the answers to questions they expected to be at the heart of the campaign. Both the Prime Minister and the leader of the Opposition should heed that report and listen to the voice of a young generation, who have a right to be part of the decisions affecting their future.
Many years ago, a debate took place in the Commons that changed the course of the war. Back-Benchers played a pivotal role then and I hope will do so tomorrow. My message is: Back-Benchers arise and forget your party allegiance. The national interest demands it.
The Lord Bishop of Lincoln
My Lords, I am honoured to speak after the noble Baroness—honoured and a little daunted. This is the first time I have spoken on this issue. I therefore want to say something about my context of Lincoln and then consider what a Bishop might usefully add to this debate.
As your Lordships know, Lincolnshire is one of the parts of the United Kingdom that voted most emphatically in favour of the UK’s withdrawal from the EU, with 66% voting to leave. I have thought hard about why that should be the case. There are the obvious reasons—the tip of the iceberg, if you like. Nationally, these would be described in terms of sovereignty and immigration. We who live and work in rural Lincolnshire are prisoners of our geography. The countryside comprises a series of sparsely populated settlements, disconnected from each other, where you learn to fend for yourself.
However, we are also heavily influenced by our history, in which, over the centuries, external forces have sought to take control of our land and laws, sometimes against our best interests. Over the centuries, people have come to demand money with menaces, to conquer, to trade, to work and, in more recent years, to seek refuge and a better life for their families. Sometimes the people of Lincolnshire have fought back; occasionally we have even grumbled; but most of the time, as a generous people, we have gone with the flow of all this and adapted.
But then there is the part of the iceberg under the water. There has been an international rise in populism playing on fear, with its accompanying narrative of the purity of what it means, in our case, to be British or English. There is also a naive view of democracy as plebiscite: “the people have spoken”. You do not need to be a polling expert to understand that people vote in elections and referendums for a variety of reasons—some noble, some flawed. The questions in the lanes of Lincolnshire—I was in a fen village near Holbeach last Sunday—appear to be: “Why is it taking ‘them in London’ so long to sort this out?”, and, from some more nuanced people, “Why can’t we explore some kind of compromise to get this done?”
I have heard almost all the speeches in this debate and am grateful for their differing perspectives. I have heard quite a lot of rhetorical certainty when we really know that the situation is extraordinarily complicated and confusing. Over the years the Church has learned and is learning, sometimes quite painfully, to manage diversity and difference, and it does so by recognising the compromised nature of our institution. I hope that the most reverend Primates in front of me will forgive me if I say that this side of heaven, the Church is not perfect.
One former Member of your Lordships’ House who knew Lincolnshire well, Michael Ramsey, the 100th Archbishop of Canterbury, began his ministry there. Ramsey was a brave and challenging thinker and spoke out clearly against injustice, including homophobia and apartheid, but in those early years in Lincolnshire he counselled the Church of England to understand itself more carefully as a compromised body. He wrote that the Church of England’s,
“credentials are its incompleteness, with tension and travail in its soul. It is clumsy and untidy; it baffles neatness and logic ... for it is sent not to commend itself as ‘the best type of Christianity’ but by its very brokenness to point to the universal Church wherein all have died”.
The Church of England has always had to manage difference and diversity, and still needs to do so. Whatever happens over the next few days, weeks and months—and no one knows what will happen—I suggest that, as a nation, we need to recognise that we are profoundly divided and need to manage diversity better, with respect and humility. The regret Motion as worded presents problems for those Members of your Lordships’ House who might agree with the sentiments about a no-deal Brexit but are less inclined to dismiss the Government’s withdrawal agreement in the absence of any worked-through alternative. For that reason, your Lordships should not be surprised if they see Members of this Bench voting in either Lobby or choosing to abstain.
The people of the United Kingdom, just like Bishops in the House of Lords, are a mixed bunch. We are in this together and we need to remember and practise the art of listening and compromise to become, over time, the best nation we can be.
Lord Hunt of Wirral (Con)
My Lords, I first draw attention to my interests as set out in the register, in particular as chairman of the British Insurance Brokers’ Association.
It is no secret that I greatly regret the result of the referendum. In common with the Prime Minister, however, I believe it is right that we respect that result. I recall what one of my political colleagues in Bristol, the late Tony Benn, wrote in an open letter to his constituents in January 1975, which was reproduced in the Spectator:
“We should all accept the verdict of the British people, whatever it is; and I shall certainly do so”.
Having found himself comprehensively on the losing side, he was as good as his word even though his views on Europe never changed. I now find myself in an equivalent position. I want to follow up the words of the right reverend Prelate the Bishop of Lincoln, particularly in his appeal for respect and humility. We must all, however, be increasingly conscious of the real and present danger of a “no deal” or “cliff edge” Brexit on 29 March.
It is possible, perhaps even probable, that the withdrawal agreement and the accompanying political declaration will not be accepted this week. We may not relish that outcome but we must be ready for it. In the space of a week, the House of Commons has effectively indicated on two separate occasions that, in the event of the agreement not gaining majority support, a so-called no-deal Brexit would not be an acceptable outcome. That is why I believe we must now move into the transition or implementation period, in particular seeking to ensure that our financial services sector—which I would argue is the jewel in our economic crown—will continue to enjoy, at the very least, the kind of access to EU markets that it currently enjoys.
One of the most inspirational memories of my lifetime has been the people’s uprising that brought down the Berlin Wall. Even as we leave the institutions of the European Union, let us not—please—get back into the business of building walls. We know where that leads and it is not to freedom.
There is a method, clearly set out in Article 50 of the Lisbon treaty, for a nation state to leave the European Union, and it has been followed. This country signed that treaty in good faith and, as is our habit, we have behaved honourably as we sought to disengage ourselves from it. That required us to negotiate with our EU partners, again in good faith, then to come to an agreement that would maintain both trade and good will. That is precisely what the Prime Minister has achieved.
The agreement may not be perfect, but no agreement ever was, is or will be. We hear a great deal of assertion about what the people voted for in June 2016. The fact of the matter is that the proposal on the ballot paper in the referendum was for the United Kingdom to leave the European Union—no more, no less. The leave campaign did not present a detailed manifesto and there was no menu of choices: soft Brexit, hard Brexit or no deal. The agreement secured between Her Majesty’s Government and the European Union is wholly consistent with the referendum result.
The general election in 2017 saw both major parties, the Conservative Party and the Labour Party, committed to respecting the referendum result. Both increased their share of the vote substantially; between them, they received over 80% of the total votes cast. None the less, there is a full spectrum of opinion, both here and among the wider electorate, and we must take great care not to exacerbate social and political divisions at this difficult time. In the vile treatment of Anna Soubry and others, we see the consequence of overheated and hyperbolic rhetoric. As the right reverend Prelate said, this is a time for calm reflection, not hysteria, and certainly not antagonism.
The Prime Minister seeks to build a consensus and move on. I believe we should wholeheartedly support her in that. If Parliament rejects the agreement, we are heading into uncharted waters, as my noble friend Lord King of Bridgwater reminded us so eloquently at the start of today’s debate. Brexiteers risk losing Brexit. Remainers risk losing everything. This is no time to be playing with fire. In the great British tradition, let us compromise, come together and move on.
Baroness Armstrong of Hill Top (Lab)
My Lords, we have seen a very long and extended debate. There are lots of things I wanted to cover, but will now not do so, as they have been so eloquently dealt with by previous speakers. I have continued to take an interest in the challenge of Brexit and the Northern Ireland peace process, and it is not the backstop that I object to in the withdrawal agreement. I supported the Government agreeing to the backstop in the agreement they initially made in November 2017, so I do not object to it now.
In many parts of the country, including the area I regard as home—the north-east of England—the Brexit vote was driven by a sense of loss: loss of industrial jobs, opportunity, prospects and prosperity. We have to appreciate that sense of loss, and do so with leadership that offers some answers and ways forward, rather than simply encouraging people to find something or someone to blame.
The referendum was not exactly this country’s finest hour. Once the vote had taken place, it was clearly a choice between a complete break, with all the consequences of a hard border between the north and south of Ireland, and huge economic and industrial disruption, or a rule-taking Brexit, in which we left legally speaking, but still obeyed most of the rules and had to make financial contributions. It was, in the words of one of my colleagues in the Commons,
“a choice between a Brexit that raised the question of what is the price, and a Brexit that raised the question of what is the point”.—[Official Report, Commons, 9/1/19; col. 456.]
We cannot have all of the current advantages of EU membership at the same time as the freedoms promised by the leave campaign. That the Government have never been honest with the British people is at the heart of the chaos and disillusionment we face today. This debate seems to have been going on, and has been going on, for more than my political life. Indeed, the noble Baroness, Lady Boothroyd, mentioned being in the Whips’ Office in Harold Wilson’s time. My father was in the Whips’ Office with her, and I was hearing all those arguments at home. As always, the chaos and disillusionment are not because of putting the national interest first; they have far more to do with the internal politics of the Conservative Party. We know that whatever happens, there is now to be a long period of debate and negotiation in front of us. If the Prime Minister wins, the political declaration demonstrates that long, tortuous process.
In these circumstances, I wanted to speak about something I raised with the then Secretary of State, David Davis. He was not able to deal with it, saying he did not understand, and would see me about it. I perfectly understand he was too busy, but I then asked Parliamentary Questions. I was interested in how the Government were going to engage with the British public about the issues that matter to them when they voted, and how they wanted the Government to move forward. If we have learned anything in the past few months, I hope it is that democracy is changing. Those of us involved in democratic institutions have a particular responsibility to work on renewing how people participate in democracy and express their views. Voting, on its own, in general elections or referenda, is no longer enough.
Brexit is the most significant decision of this generation. It is also one of the most complex set of decisions I have experienced. This is a prime opportunity for us to develop more deliberative democracy. I have become convinced that we need a second referendum, for reasons others have mentioned, but also because we have not effectively involved the public in the considerations about Brexit. The Constitution Unit at UCL held a citizens’ assembly in 2017 over two weekends, first identifying the issues, and then looking at those issues and potential ways forward. All the participants talked of how much they got out of the process, their learning, and how useful it was. I hoped the Government would learn from this, and indeed from other countries that effectively use deliberative democracy in the consideration of difficult issues. Who would have thought that the Republic of Ireland would agree gay marriage and abortion legislation in referenda? It did it through a deliberative process.
The Government have been so inwardly focused that they have missed ways of moving Brexit forward in a way that includes those people who voted in the referendum. The public are fed up. They continue to feel they are irrelevant in the debate, and that they will pay the price of this deal. Let us be honest: they have been let down, and we cannot guarantee their prosperity in the future with this deal. Let us stop the threats and intimidation, and recognise that things are so different from what people were promised during the referendum, or indeed during the preparations for Article 50. We now need to involve the public in the issues and ways forward in a deliberative way, through such exercises as citizens’ assemblies. The Irish used them to construct the question. Maybe we have to have the courage to involve people in this way in setting the question for a new referendum. Contrary to what many say, I believe that if we do that we might just begin to restore faith in democracy.
Lord Stephen (LD)
My Lords, democracy did not start and finish on 23 June 2016. For those who say we must at all costs respect the result of the referendum, does that mean that whatever the deal, whatever Prime Minister Theresa May or some other Prime Minister might come up with, we have to go through with it, however unpopular that agreement is to both the remainers and those who support Brexit—and, indeed, however misleading, manipulative and incorrect the claims of the leave campaign? Does it mean that one referendum binds us for evermore on an issue? Do we not have a parliamentary, representative democracy? Do our MPs not count? This Government, in this 21st-century UK democracy, say that only one vote counted—in June 2016. A new referendum on a new issue—the acceptability of the EU deal currently offered by the Government—is now said to be anti-democratic and a betrayal as it does not respect the decision taken in the summer of 2016.
I am a Liberal Democrat, and it has to be said that we often encourage referendums. But I tell your Lordships this: I do not have any great enthusiasm for referendums. I never have had. That has been emphasised by my position as a Scottish Liberal Democrat. Generally, I would support them only to give authority—the authority of the people of this country—to a major constitutional change that the Government of the day want to implement. I do not much like them being used to test the waters when a Government or party are unclear or divided. I do not like their consequences when the result is desperately close: 51.9% to 48.1% is desperately close and has left a nation very divided. With the Scottish referendum on independence, 55.3% versus 44.7% felt very divisive and very close.
In the current circumstances, a second referendum, a people’s vote, a new referendum on a different question on the detail of the deal, is entirely legitimate. Remember that Theresa May was once a campaigner to remain. On 25 April 2016 she said:
“In essence, the question the country has to answer … whether to Leave or Remain—is about how we maximise Britain’s security, prosperity and influence in the world, and how we maximise our sovereignty: that is, the control we have over our own affairs in future”.
She went on to answer her question by saying that the case for remaining was the stronger. She referred in her speech to how Europe stumbled towards war in the last century. She talked about a hard-headed analysis and confirmed that, on security, trade and the economy, we should stay in the EU. So before she lapsed into the language and rhetoric of “Brexit means Brexit” and “no deal is better than a bad deal”, she was very clear that our “destiny”—again I use her word, not mine—was better inside the EU. Those are strong words, and very different words from those we hear today.
What happens next? There are no strict rules on any of this, and certainly no written rules. It seems that the UK desperately needs those written rules now more than ever, but there is no written constitution in this country. So where from here? I still hold the memories and bear some of the scars of the Scottish referendum. As I mentioned, it was never the outpouring of democracy that some, especially in the SNP, like to suggest. It was divisive and damaging.
If it had gone the other way, I say this: I am totally convinced that some of the unionists opposite me today, who—whether as Brexiteers or government supporters—strongly oppose a new referendum on the EU issue, if there had a been a yes vote on independence would have been strongly supporting a second referendum on the detail of that independence vote, to try to keep Scotland inside the UK, highlighting the divisive, damaging consequences of a disastrous deal. Such is politics in times of turmoil.
What Theresa May could have done before Christmas, when she realised she was going to be defeated in Parliament, was surely call a second vote, a new referendum. A win-win situation for her, you would have thought. Either the Prime Minister would get the backing for her deal from the people of Great Britain, or we remain in the EU—the position which she supported and perhaps somewhere deep down still does support. Her alternative is ploughing on. Is that better? Why does she do it? Is it better for the Conservative Party? Is it better for the Government? Is it better for the people of this country, better for our future? We shall see—but I see no sign of it being better.
“Accept the deal”, she says. And if we do not trust her—and it seems clear that we do not, either in this place or in the other place—we are no longer at the kicking the can down the road stage of all this, are we? It seems that we go closer and closer to the edge of the cliff and, unless Parliament intervenes, we might all together go over the edge of that cliff. This is high-noon, high-wire madness. It is not good government, it is a derogation of duty. It is done because the Prime Minister has lost sight of her duty to act in the best interests of the nation, and instead is desperately trying to hold together something, I know not what: her Ministers, her party, maybe in her own mind our country. Already over 100 of her MPs believe that she is not the best person to lead her own party, far less our country. It is highly possible that with a new referendum she would win support—
Baroness Barran (Con)
To echo my noble friend, I would respectfully ask that noble Lords look at the clock and respect the six-minute speaking time.
Lord Stephen
I will draw my remarks to a close. I do not believe that a new referendum, whatever the question, would support a hard Brexit—so the result would either be the Prime Minister’s deal, or remain, which the Prime Minister campaigned for. Would that be such a terrible result for her and for this country? Should we not build consensus in this country for a way forward that unites, not frightens and divides?
Lord Morrow (DUP)
My Lords, ever since the referendum on leaving or staying within the EU, the United Kingdom has had a tortuous time, irrespective of what position you take in relation to that particular vote. Much of the debate has rotated around Northern Ireland and the Irish Republic border. I speak as one who in the first 16 years of my life lived within walking distance of that border, and today I reside about a 15-minute car drive from it. I know other Peers from Northern Ireland could say similar, so we are well acquainted with the border in every respect. It is in our DNA.
I suspect it will not come as a massive surprise to anyone in this House that I and my party, namely the Democratic Unionist Party, are opposed to the Prime Minister’s proposals for withdrawal from the European Union. It is patently clear that Northern Ireland is to be treated differently from other regions of the United Kingdom. From the beginning of the negotiations we have set one red line for the Government: that there could be no new border in the Irish Sea, thus undermining the economic and constitutional position or integrity of the United Kingdom.
Northern Ireland trades more with the rest of the UK than we do with the Republic of Ireland, the rest of the European Union and the rest of the world combined. The latest figures for total sales by Northern Ireland companies make interesting reading. Within Northern Ireland, they were £45.2 billion; to GB, they were £11.3 billion; and to the Republic of Ireland, they were £3.9 billion. These figures speak for themselves.
The DUP secured the inclusion of paragraph 50 in the joint report published in December 2017. The paragraph states that the UK,
“will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with”,
the 1998 Belfast agreement,
“the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market”.
Some of the architects of the Belfast agreement—I was not one of them—tell me that the present proposals drive a horse and coach through it; at the same time, the Government say that their design is to protect that very same agreement. It is abundantly clear what the EU’s intentions have been since the publication of its legal interpretation of the joint report. It sought to sever and divide the internal UK market. At the time the legal interpretation was published, the Prime Minister was clear that such an interpretation was totally unacceptable. We agreed entirely with those objections; our position has not changed.
The publication of the Attorney-General’s advice demonstrated why there was such reluctance to publish it. The advice was devastating in its contents. It said that the backstop will come into force on the conclusion of the transition period,
“while negotiations are continuing for an agreement that supersedes it and ‘unless and until’ that ‘subsequent agreement’ is applicable”.
Northern Ireland would remain inside the EU’s customs union. The Commission and the European Court of Justice would continue to have jurisdiction over Northern Ireland’s compliance with those rules. Therefore, goods passing from GB to Northern Ireland would be subject to a declaration process. Northern Ireland remaining in the EU single market would mean that, for regulatory purposes, Great Britain is essentially treated as a third country by Northern Ireland for goods passing from Great Britain into Northern Ireland. The backstop would continue indefinitely and cannot be exited by the UK. The Attorney-General’s words were clear. He said that,
“despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein”.
We are told much about the backstop. Allegedly, nobody wants it; why is it there, then? Furthermore, who is going to construct the apparatus on the border? Nobody wants that—Europe does not, the UK does not and no one in Northern Ireland wants it, so who is going to construct it? We await with interest.
The belligerent attitude of the Prime Minister of the Republic of Ireland has proven to be downright unhelpful. The Irish Independent reported in an article of 20 July 2018 that Leo Varadkar had ordered the Revenue Commissioners to stop preparing contingency plans for the return of a hard border under Brexit. He told revenue officials to stop investigating technological Brexit solutions. The article said:
“The work had begun under former Taoiseach Enda Kenny and ex-foreign affairs minister Charlie Flanagan”.
Again, there is proof that the Republic of Ireland’s Prime Minister has been and continues to be obstructionist in every way that he can. Instead of working in the best interests of the Republic of Ireland and the United Kingdom, he is more content to meddle and make things as difficult as he possibly can.
Lord Lang of Monkton (Con)
My Lords, like my noble friend Lord Hunt, I propose to confine my remarks to the subject of the referendum and what should happen now. I do not much like them, but I believe that a referendum can be a valid instrument of democracy, used rarely and with care, for really big issues on which the nation is divided. The Independent Commission on Referendums recently suggested that only issues of sovereignty and constitutional change should be covered and I agree. Referendums are always dangerous, however, because the Government of the day forfeit control. As we have seen, once triggered, they can move in unexpected directions with unpredictable results.
It is vital to recognise that referendum democracy and parliamentary democracy are different animals. They do not sit easily together. They have different blood groups, and to inject a referendum into our parliamentary processes, especially on complex and protracted matters of uncertain outcome, is indeed hazardous. Once embarked upon, it needs to be carried through with respect and consistency and, above all, it must be honoured. I recall that the Welsh referendum, not mentioned so far today, was passed with a majority of 0.3%, but getting a result is part of the main point of a referendum.
At the outset, the Brexit referendum had the almost unanimous support of the political parties. They agreed on the unconditional nature of the question asked and undertook to support and implement the outcome—promises ratified in the subsequent general election. Since then, many in Parliament, of all parties, have resiled from that commitment, and that is the cause of our present difficulties. Negotiations with an ill-disposed EU, hard enough to pursue with the backing of a united Parliament, have been sabotaged and frustrated by Parliament itself. We are gridlocked and self-indulgent, and it is not a proud day for parliamentary democracy. Parliament is now defying its own electorate. Worse than that, we are invalidating the referendum as a credible instrument of democracy for the future.
Of course, in the delivery of day-to-day decisions such as we take in this place, with our general debates and our legislative processes, changes of mind form a natural part of the continuum of politics, but a referendum is different. It is, as we all know, a one-off decision-making process, in which Parliament abrogates its responsibility in favour of the electorate to answer a specific, clear question. For us then to ignore that answer is, to put it mildly, unworthy. We have no right to put our widely varied interpretations on what the electorate really meant. To suggest instead that we should hold a second referendum, before the outcome of the first has been delivered, is to add insult to injury. “Wrong answer”, as they say in Europe, “Try again”. That has never been our kind of politics. As the SNP once so helpfully reminded us, a referendum is generational in nature. They are not buses. If you miss one you cannot say, “Don’t worry, there’ll be another along in a minute”.
Why hold another referendum now? I heard an MP say on television the other day that the electorate should be asked again “now that they know what Brexit looks like”. But we do not know what Brexit looks like. The deal as it stands could yet be changed in further negotiations, and anyway it has never been clearly explained to the electorate. It is changing day by day, as a blizzard of further amendments and other wizard wheezes are churned out in another place. What really matters is what the terms of our future relationship with the EU will be, about which we know nothing at all, except that the negotiations will be a nightmare. What would the question be? I have not yet seen or heard a single suggestion of a question that would be clear, balanced and unconditional, as the last one was. What would it settle? I do not believe it would settle anything, except to leave a legacy of bitterness. A second referendum cannot just wipe out what has already been decided. Why, then, is it proposed by so many? I see it as a subterfuge, one that dresses up as a virtue what is really an escape route through which its promoters are trying to wriggle out of the promises they made in 2016.
I voted remain in the referendum, and I respect the opinions expressed by others on this and other issues, but I believe that fulfilling the pledges we made then is a debt to the electorate that we must pay. That has a greater chance of closure than to leave an open wound. I see this as a matter of principle, and one that goes wider than Brexit. Our purpose now should be to honour the outcome of the referendum. That is not just the right thing to do; it is also, I venture, the moral thing to do. We should prepare now, urgently, to leave the EU, as the law provides, on 29 March—with or without a deal. Only then can the nation start to come together and our parliamentary democracy restore its self-respect.
Lord Whitty (Lab)
My Lords, I want first to focus on what may appear a parochial issue: the role of this House in the next few weeks. If the Government lose tomorrow, we are on course to crash out of the EU without a deal within three months. Yet, as a Parliament, we have nowhere near set up the legislative framework or regulatory order that will be needed for British business, agriculture or society as a whole to operate at home and abroad. When will the Government set out clearly their proposed sequencing and timetable for the scrutiny both of primary legislation required prior to Brexit and the large number of statutory instruments that we require to pass by the time we leave? That is a question that Ministers in various different contexts have dodged frequently over the last few weeks. Without this, we will, frankly, be in legal chaos. In primary legislation, we have at last restarted the Trade Bill, which is inadequate and incomplete. Yet we have not seen the Bills on migration. This House has not yet had sight of the Agriculture Bill. We need an environment Bill and the Fisheries Bill. On top of that, we have several hundred statutory instruments to pass to make sense of Brexit—if, indeed, we leave on 29 March. Only about 10% of those statutory instruments have been passed so far.
All that must be done within the next 10 weeks. That is a nigh-impossible task. I ask the Government: how are they going to manage it? When will they tell the rest of the House how we are going to manage it? Or do they have a different plan? Do they intend, perhaps, to recognise at last the folly of putting 29 March in primary legislation in the withdrawal Act? Alternatively, are they proposing to deal with it by emergency regulation and emergency legislation? In other words, do they intend to operate in the next few weeks government by decree? Does it mean that taking back control means, in effect, that we subject ourselves to a system of Napoleonic edict by the current Government? The role of this House and the other place, in looking at that legislation, is vital in order that we have a climate and legal structure in which to operate.
When the referendum result came through, like others, I was deeply saddened. But I did not immediately think that this must be overturned. Instead, both personally and as chair of one of your Lordships’ EU sub-committees, I focused on the options available to us for a new relationship with Europe, particularly in relation to trade. Just over two years ago, my committee produced a report looking at the various options: the Norway option, which would be the least disruptive; a customs union; a free trade agreement; a comprehensive association agreement; and, indeed, dropping out on WTO terms. The fact is that, nearly two and a half years later, all those options are still open to us. We do not know which form of trade arrangement we shall make with our leading trade partner. We are no further forward.
This is the result of a combination of incompetent negotiation and bad timing. We triggered Article 50 too early, without having a plan. We accepted the EU’s sequencing, so that there were issues in the withdrawal treaty, such as the Northern Ireland situation, which should not have been in the withdrawal treaty and are now holding up any agreement. In other words, we have spent two and a half years hung up on the wrong issues. There is no clarity to answer the questions the majority of the population and of businesses are asking. What will be the system of trade? What will be our human rights? What will be our system of security post Brexit?
The two major parties are split on this issue. The House of Commons is in gridlock and acting like a school playground. The country is much more bitterly divided now than it was during the referendum. Accusations and counteraccusations of betrayal will arise however we now deal with this issue. But the reality is that the political class, which includes all of us, has let the population down. We have comprehensively failed, in the two and a half years since the referendum, to point the way forward. The only conclusion I can draw from that is that we need to return the issue to the people—not as a subterfuge or a way to get out of earlier decisions, but as a way to face the future with the support of our population.
Lord Curry of Kirkharle (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Whitty. He and I have worked closely together in the past and I hugely respect his views, even if I disagree with his final comments. We have listened to some highly intelligent, wise and thoughtful contributions, and it is an honour to be a part of this important debate at this point in our history.
Before I comment on the options facing the other House tomorrow, I will endorse what others have already stated: the mood of the public is growing increasingly impatient with the endless, repetitive debate on this topic and the media’s constant, often unhelpful, analysis, particularly that of the BBC. It is dominating every conversation. It is a complete distraction. It is delaying progress, not just on Bills in this House, as we have heard, but in every sphere of life, including investment by the business community. In my view, any further procrastination could lead to significant unrest. Most people I speak to are bored with the topic. They just want a decision; they want to move on. We and Members of the other House need to pay attention to the current mood of the people.
I have been considering the options if the Prime Minister’s deal is rejected tomorrow: Parliament takes control; we have another referendum; we crash out without a deal; or there is a vote of no confidence, which might result in a general election. I am not even going to consider the last option. It would be a complete humiliation and a disaster.
Let us suppose that the PM loses tomorrow and Parliament takes control to decide on the terms of the deal. I have the utmost respect for my good friend the right honourable Hilary Benn, but do we really believe, with the shambolic state the parties are in, that Parliament is capable of negotiating a better deal? As we have heard, the Conservatives are engaged in open warfare, Labour in covert warfare; the SNP is navel-gazing; and the DUP is discredited. I have not thought about the Lib Dems. Besides, this would result in having to delay Article 50 and would add significantly to the current uncertainty. What would be achieved? The only possible alternative would be a customs union arrangement, a variation on Norway or Canada. That would involve permanently accepting EU rules and trading terms over which we had little or no influence—the very issues of concern about the backstop.
So why not have a second referendum? That is the last thing we need, in my view. The country is divided, fractured and tense. As others have stated, we have had two years of uncertainty. This is of particular concern to the business community. To perpetuate this state of affairs would be irresponsible and achieve nothing.
How often have we heard the statement that the people did not know what they were voting for the first time round? They knew exactly what they were voting for. They were fed up with the loss of sovereignty, being controlled by the ECJ and the impact of migration. They may not have fully understood the consequences of leaving but they made a decision. We need to honour it. The second statement I often hear—we have heard it today—is that it was not a conclusive vote: 52 to 48. Most of us expected it to be much closer and were shocked when we woke up on 24 June to discover a 4% margin. In Switzerland, which holds referendums and where we have friends, such a margin would be conclusive.
We do not need another referendum, even on the terms of the deal. The same political arguments would be made and voters would be even more confused. In any case, what would it achieve? Would we reverse the decision and cancel Article 50? The reality is that we have been half-hearted about our EU membership for a long time, playing hokey-cokey. Most of us were very comfortable with our membership of the Common Market but the Maastricht and Lisbon treaties, with their desire to integrate fully, were a step too far for most of the British people. If another referendum were to take place, it would have to be on the basis that a vote to stay would involve embracing fully the European Union and its centralisation policies on economic and monetary union, the single currency and the authority of the ECJ and the Commission, surrendering our sovereignty in the process. We are not going to do that. We cannot have a second referendum to stay in on our current terms now. Dissatisfaction with the current arrangement led to this mess. We sent David Cameron off on his bike and he failed. The people have spoken and we need to move on. Another referendum would create even more confusion, division and delay.
So why not just crash out? For my constituency base, the farming community, it would be turmoil, particularly for the livestock sector. Those responsible for managing the pasture lands of our country, who produce milk, beef and lamb, are dependent on EU markets. Some 40% of our sheepmeat, the highest of any commodity, and 36% of our beef crosses the channel. That is an essential counterbalance to the power of supermarkets here in our home market. I was at a farmers’ meeting near my home last week. They are concerned about three things: the loss of direct support, which we will debate when the Agriculture Bill eventually comes to this House; the rise in the popularity of veganism, which they see as a real threat; and the risk of a collapse in markets as a result of no deal. Many businesses might not survive that triple whammy without serious government intervention and support. I am delighted that Michael Gove, the Defra Secretary, feels the same way. There is nothing appealing about another decade of austerity, which I believe would follow.
I too voted to remain but if noble Lords accept my premise that a second vote would just prolong the agony and create further confusion, that leaving with no deal would lead to financial turmoil and that reversing the decision would not resolve our deep-seated suspicions about the EU, the only question that remains is whether the deal is good enough. It was never going to be possible to negotiate a perfect deal. The only possible solution to the thankless task the Prime Minister inherited is that both sides of the opinion—those who want to remain and those who want to crash out—are equally disappointed. Remarkably, I think that the Prime Minister has achieved that objective. I hope and pray that the Commons will have the common sense to endorse the deal tomorrow. To reject it will perpetuate the current uncertainty and achieve nothing, in my view. As other noble Lords have said, we need to move on, look forward and negotiate with pace to avoid the backstop.
The Duke of Wellington (Con)
My Lords, I declare my European interests as detailed in the register and my membership of the European Parliament for 10 years in the 1980s. I must start by stating clearly that if I were a Member of the other place, I would vote tomorrow for the withdrawal agreement negotiated by the Government. I was due to speak in this debate in December when we were adjourned. It was, I think, a mistake by the Government not to put the deal to a vote then, and, as a result, we have lost five weeks. But the arguments for supporting the deal remain unchanged.
I voted in the referendum to remain but, with great sadness, I have long since had to accept the result. We must recognise, however, that the economy has already suffered. We have not had the investment or growth that we should have had in the past two and a half years. But both major political parties are committed to honouring the referendum result, and we are leaving. The Government have had the unenviable duty of carrying out the narrowly expressed majority view of the British people to leave the institutional structures of the European Union while minimising the damage to the economy and to the finances of the country.
From the beginning of this process, it has been widely recognised that a transition period will be absolutely essential for all the multiple adjustments which our citizens and businesses must make. If there is no withdrawal agreement, there is no transition period, and all but the ultras recognise that to leave without a deal would be extremely damaging to this country’s interests.
There have been many excellent speeches in this House and in the other place urging a cross-party approach to this matter. This is not a moment to indulge in party-political tactics. Whatever our views on remaining or not in the EU, whatever our party, whatever our previous positions on particular parts of the agreement, we must all now accept that our Government have negotiated a withdrawal agreement which allows us to leave on 29 March in an orderly fashion and with a transition period until the end of 2020 extendable for up to two years.
Of course, the withdrawal agreement contains the now infamous backstop. But it is not widely understood that the backstop is in fact rather advantageous to this country. We have access to the single market; we leave the common agricultural and fisheries policies; we end free movement of people; we make no financial contributions. Surely it is beyond doubt that the EU will not allow us to remain in this privileged position a week or a month longer than absolutely necessary. It is most unlikely that we will ever get into the backstop anyway.
What is so often forgotten in much comment in the press and elsewhere is that a Canada-plus, a Norway-plus or a Common Market II all need a withdrawal agreement before we can even begin the serious negotiation. The European Commission has said, and repeated today, that it wishes to start the process of the talks on the future relationship as soon as possible after the agreement is passed by the other place. So it is clearly in the national interest to agree this deal and move swiftly to the real and much more difficult negotiation on the future.
It is dispiriting to hear so many Members of both Houses criticising the deal. Some are motivated by actually preferring no deal. Some are motivated by wanting a second referendum. I do not support either of those outcomes. If the deal is rejected tomorrow by the other place, it will, I think, become inevitable that we will need to seek a three-month extension to the Article 50 deadline, and a rejection will almost certainly increase support for a second referendum in the country.
Too much of this debate is driven by ideology and not by common sense. This is a moment when we must be pragmatic. We must agree an orderly departure. We must negotiate a very close future economic relationship with our neighbours and most important markets. This House has been most effective in the past when it devises cross-party agreements. As a House, we must be clear that we cannot allow the country to leave the EU without a deal. If, or when, the other place agrees the withdrawal agreement—which in the end it surely must—I hope that cross-party groups or committees from both Houses will make serious recommendations on the best future relationship with Europe.
In the meantime, I urge the Members of the other place tomorrow to abandon their hopes for no deal, for a general election or for a second referendum, and to support this country’s Government at this most difficult time.
Lord Adonis (Lab)
My Lords, it looks like Brexit is effectively over, thanks to the mature good sense of the British people and the British Parliament. The question now is: what next?
First, we need to end Brexit democratically. If the Prime Minister has any qualities of leadership, she will call a referendum rather than wait for one to be forced upon her by the House of Commons.
Secondly, we need urgently a plan to rebuild Britain and to tackle the social crisis that led to Brexit. There must be a real end to austerity: we need to build houses, improve the NHS and train our young people, especially those who do not go to university. We need a federal constitution for the United Kingdom and a new settlement for England, which is currently run like a colony from Whitehall.
Thirdly, we must rebuild Britain’s place in Europe. We need to lead, not leave. We must stop, once and for all, being half in and half out, and fulfil the vision of our country’s greatest leader, Winston Churchill, who saved Europe and inspired the European Union—a free union of free peoples that has successfully promoted the peace and prosperity of Europe for two generations, and which we are taking for granted at our peril.
I was recently in Dublin discussing the consequences for Ireland of Brexit. On the wall of the General Post Office, scene of the bloody 1916 Easter Rising against Britain, are these words of Seamus Heaney:
“History says, don’t hope
On this side of the grave.
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme”.
Today, we have a once in a lifetime moment to do the right thing for our country.
Baroness Miller of Chilthorne Domer (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Adonis, and I will attempt to imitate his brevity. I spoke in this debate before Christmas and simply want to ask the Government a question and to make one comment.
Why do the Government not, even at this late stage, make an agreement with the EU 27 simply about the status of EU citizens here, which would be reflected for UK citizens in the EU? As the Minister knows, several countries have come up with their agreements: Italy, France, the Netherlands and Germany. It would be a small, easy step for the Government to take and would show that they were compassionate and humane. The Minister may shake his head, but there is simply no will on the part of the Government to address this. They could have done so early on and got it out of the way. I look forward to hearing in the Minister’s reply the Government’s reason for not doing so.
My comment is that I am very tired of hearing what a divided country this is and that that is why we cannot have another referendum. The country is divided mainly along generational lines. I am sure that the House is as aware as I am of the figures for those who voted. Of 18 to 24 year-olds, 61% overall, and 80% of young women in that age group, voted to remain. Why does this generational divide matter? Because those young people have their whole economic future before them. The old people who voted leave do not: they are picking up their pensions. In my view and, I would hope, that of most parents and grandparents here, young people have a greater right to express their views on this issue. In fact, I would not have given a vote to the over 65s at all—and I declare myself as being in this group. Our future is as grandparents, and that is it. So we owe young people a second referendum. The country is in a total mess and the least we can do is enable them to have their voices heard.
Lord Skidelsky (CB)
My Lords, I do not want to add to the volume of speculation about what will happen tomorrow or a day or two after. The noble Lord, Lord Howell of Guildford, expressed clearly my position on what should happen: the withdrawal agreement, or an amended successor to it, should be made subject to a vote of confidence, and if the Government lose it there should be a general election. That is the clean and British way but whether it will happen is in the hands of the gods at the moment.
I hope to add value today as an academic, and in this no doubt Utopian quest I should like to make three quick points. First, it is wrong and misleading to describe people’s behaviour in ways that they would not themselves recognise. We should not label the leave vote as the vote of the left-behinds or the ill-educated. These phrases have a certain descriptive accuracy and draw attention to the damaging legacy of austerity and insecurity, as well as to faults in the education system. However, it is wrong to say that 17.4 million people voted to leave the EU because of these things. That is not only condescending but to deprive voters of agency. No one will tell you, “I voted to leave because I was left behind or badly educated”, but they will give a reason, and unless these reasons are taken seriously and not just seen as the effects of a cause, we seriously misconstrue human behaviour and risk drawing wrong conclusions on policy.
Secondly, it is absurd to explain the referendum result by saying the leavers were misinformed. No doubt they may have been on financial matters, but this explanation leaves out the whole history of our relationship with the EU. That we are likely to be the first country to leave cannot be separated from our lateness in joining, our motives in joining and the persistently low levels of support for the European Union, as revealed by the Eurobarometer, and particularly for its political implications.
In today’s FT Wolfgang Münchau writes that he is,
“constantly amazed by the inability”—
of the remainers—
“to make a positive case”.
The explanation lies in their inherently economistic view of the EU—it is a matter of benefits and costs. Very rarely has there been enthusiasm for Europe as a cause.
Finally, a bit of political economy may help. The single market was a Thatcherite initiative of 1985. The Maastricht treaty, which set up a single currency—from which, of course, we opted out—followed in 1992. The simultaneous deepening of economic integration and the widening of the economic union to include 28 countries without a parallel strengthening of the political institutions was a fundamental mistake. Free trade in goods is one thing; free trade in capital, financial services and labour and a single currency require a degree of political integration—in short, a European Government—which some aspired to but which has never been realistic. The economic cart should never have been allowed to run so far ahead of the political horse.
Why was it done? The political reasons have been well rehearsed; I want to emphasise the faulty economic logic. Widening and deepening came at the height of faith in the free market and mistrust of government. Completion of the market, economists preached, would maximise efficiency. The only macro policy needed was an inflation target, whose achievement could be reliably left to an independent central bank. There was no need for a European Government, just the appropriate legal and regulatory framework. This delusion has been the cause of most of the EU’s trouble.
The noble Lord, Lord Adonis, who is not in his place, would say that that is why we must push for a European federation now, to which I would reply that we are not ready for one and neither are most members of the European Union. The German Finance Minister Wolfgang Schäuble recognised this when he proposed a multi-speed Europe in 1994. His argument was that different member states had varying appetites for integration and that a core Europe consisting of Germany, France and the Benelux countries should federate, leaving others in a looser union to catch up with the core if and when they were ready for it. We would have been saved a huge amount of trouble had that proposition been acted on.
I voted remain because I wanted Britain to push constructively not for a federal Europe, but for a multi-speed Europe. I still think this is the only way the EU can be made to work and the only way we could have worked with it, but our voters were asked to decide on the basis of what was, not what might have been or what might be. We should respect their decision, and for the time being, at least, we must watch the European Union’s struggle for coherence from the sidelines.
Lord Cavendish of Furness (Con)
My Lords, it is a privilege to follow the noble Lord, Lord Skidelsky. As always, I listened with intense interest to his contribution. I say today with great sadness but with absolute conviction that the agreement so painstakingly negotiated by my right honourable friend the Prime Minister stems from dreadfully flawed advice and is nothing short of catastrophic. I am on record in your Lordships’ House as recognising the pain felt by many of your Lordships following the referendum result and, in consequence, I always hoped that a compromise that reflected the narrow win by leave was achievable, but today we are asked to take note of an agreement that, to my mind, is worse by magnitudes than anything I could have imagined.
Whatever redeeming features may be embedded in this agreement, and I accept that there are some, I touch today on two aspects that, for me, are quite impossible to accept. Under this deal, we would need to match all and any trade concessions offered by the EU to third countries. However, the obligation of those third countries to reciprocate would apply only to the EU 27 and not to Britain. Put another way, our home market would be at the disposal of EU trade negotiators to use exclusively for the benefit of the remaining EU 27. I wonder how a country such as ours could even contemplate such political and economic suicide.
No one, I think, quarrels with the notion that the first duty of the state is the defence of its citizens. Here I rely on the authority of others in concluding that the withdrawal agreement degrades, perhaps fatally, our ability to discharge that duty, through undermining our place at the heart of NATO and the functioning of the vital Five Eyes alliance. This alarming threat has led Sir Richard Dearlove, the former head of MI6, to join forces with the former Chief of the Defence Staff, the noble and gallant Lord, Lord Guthrie, to raise this issue in the starkest terms.
It is surely beyond argument that the UK is legally and morally entitled to withdraw from a European project that keeps evolving in a direction in which British voters do not wish to go. I think the noble Lord, Lord Skidelsky, touched on this. That direction is constantly rehearsed by the functionaries of the EU, who make no secret of their federalist ambitions. The same applies to some, but not all, of the political leaders. Remain-minded people here are entirely silent on the implications of this country becoming part of a federal EU. Either they are too craven to admit to wanting such an outcome or they cherish the hope that somehow it will not happen. I find neither position deserves respect. The late Richard Crossman said:
“The amount of enthusiasm for federal union in any country is a measure of its defeatism and of its feeling of inability to measure up to its own problems”.—[Official Report, Commons, 26/6/1950; col. 2039.]
I agree.
Many noble Lords are given to adorning all discussion on a clean break from the EU on WTO terms with the words “unthinkable”, “crashing out”, “disastrous”, “chaos” and more of the same. I wonder whether they paused over the Christmas break to read a wide assortment of contributions from highly capable entrepreneurs and industrialists who take a different and opposite view. Only last week, my remaining noble friend Lord Finkelstein was politely corrected by the hugely distinguished Mr Shanker Singham and others who really understand international trade. Outstandingly successful British manufacturers such as Sir James Dyson or my noble friend Lord Bamford confirm how little we have to fear from a clean break. I respectfully suggest that the noble Lord, Lord Kerslake—I do not know if he is in his place—is wrong to imply that only people of means are relaxed about a clean break. I could point to scores of small entrepreneurs who share my view.
I predict, I hope wrongly, that when the noble Baronesses, Lady Ludford and Lady Hayter of Kentish Town, wind up—neither of them, I think, would claim to have even passing personal experience of trade or national security—they will ignore or repudiate the advice of those whose long and distinguished careers confer on them unparalleled authority.
For most of my adult life, I have chaired a diverse SME family business and my personal interests are detailed in the register. I have traded in some 50 countries in the world. Although my preference would be for a deal such as Canada-plus-plus-plus, I harbour no fears about the future under WTO terms—139 other countries manage it without extravagant distress. Do I pretend to know what is in store for my family business outside the EU? Of course I do not; no one does. Do I think everything will be better? Possibly not, but of this I am perfectly certain: it will get worse if we stay shackled to a sclerotic and moribund EU.
The point is that we are up for it and ready to seize the opportunities the future brings. The referendum result was a rebellion against a cast of unaccountable EU officials, whom power has corrupted and who visit pain, misery and financial hardship on the most vulnerable throughout the EU. What is there to like about this construct, over which there already hangs a sense of decay and morbidity? With or without a deal, this ghastly saga must end now so that we can begin once again to build bridges, revive old friendships and look once more to the world outside, where real growth resides.
Lord Bilimoria (CB)
My Lords, in February 2016, almost three years ago, Britain was at the top table of the world, a truly global economy and the fastest-growing economy in the western world. Prime Minister David Cameron had been in office for six years, he had built up a reputation and relationships globally and he had standing and respect. Look where we are today: our growth rates have dropped sharply—we have the lowest forecast growth rate for the next five years of less than 2%. Where is David Cameron now—the man who disappeared with his tail between his legs the day after the referendum?
UKIP had a major role to play in the referendum. People forget that, in the 2015 general election, UKIP polled 12%. Look at where it is today, with one discredited leader after another over the last three years. The party has basically shown its true colours, with Tommy Robinson now an official adviser. As for Nigel Farage, that snake-oil salesman, what is he doing now? He is captain of his old school Dulwich College’s old boys’ golf society.
The two previous nationwide referendums, to remain in the European Community in 1975 and to stay in the current voting system in 2011, were won by approximately two-thirds, or 67%. Now, the country is being held to ransom by this big figure of 17.4 million—a figure thrown at us by Brexit supporters every day—the largest turnout in history. We have to implement and execute the will of the people. Let us keep this in perspective: 17.4 million makes up just 37% of the voting population. Now the whole country is being held to ransom by the tyranny of the 52% majority. What about the 16.1 million, the 48%, who wanted to remain? Are they to be completely ignored as if their will does not count? Is it a question of who won and who lost?
The argument against a second referendum is that it would divide the country. The country is already completely divided, Parliament is divided and both major political parties are divided. How much more divided can we get? The other reason we are given is that Parliament voted for the referendum to take place. I have kicked myself so many times that Parliament did not take the referendum Act seriously. Then we are told that both major parties included implementing the referendum in their 2017 election manifestos—the Liberal Democrats did not. Now there are threats, including from former Cabinet Ministers, that if we overturn the result of the referendum we will undermine the whole of our democracy and there will be no trust in politicians or Parliament ever again.
The whole country is being held to ransom by something that took place two and a half years ago. Since when does democracy bind us to a point in time? Democracy is dynamic. Democracy is about changing your mind when the facts change or if new information emerges that you did not know before. Look at how much has changed in two and a half years. We did not know until a year ago how difficult it was going to be to negotiate Brexit. Since the election in 2017, it took a year and half to agree three items from the 585-page withdrawal agreement.
During the referendum, hardly any mention was made of Northern Ireland. The Northern Ireland backstop has become the Achilles heel of Brexit and the biggest issue in the Prime Minister’s deal. It is a circle that cannot be squared: if we want to preserve the precious Good Friday agreement and preserve peace; and if we want to preserve the union by not having Northern Ireland treated separately from the rest of the United Kingdom. We are stuck with this backstop. Brexit is threatening our precious United Kingdom.
Brexit has also threatened our constitution—the balance of powers between our Executive, our Parliament and the judiciary. All those elements have been stretched to their limits. Today, we do not have a Government of the people, by the people, for the people; we have a Government who have set their own red lines—leaving the customs union and the single market and no more Court of Justice. It is a Government who have tried to bypass Parliament at every stage. They tried to implement Article 50 without Parliament. It took Gina Miller and my noble friend Lord Pannick to go to the Supreme Court to win that case. The Government tried to stop Parliament having a meaningful vote, and the Commons had to fight to get it. They also tried to bypass Parliament by not releasing the legal advice, but they were eventually forced to do so and had to admit that the UK cannot unilaterally leave the backstop.
Accepting the Prime Minister’s deal would be the worst of all worlds. We could be tied to the customs union and EU regulations—to infinity and beyond—without a say at the table. However, it is also a blindfold Brexit, with a 26-page wish-list declaration—a list of best efforts. Already, even before the start of the two-year transition period, the subject of Spain and Gibraltar has been brought up, and our fishing rights are already being talked about. My noble friend Lord Kerr said that it has been a wasted one and three-quarter years where the cart has been put before the horse. The framework has not been built, and we are left with a blindfold Brexit. Norway/EEA/EFTA/European Community version 2 would be the least worst option.
Around the world, people are saying, like Professor Michael Porter of the Harvard Business School:
“There is little doubt that the United Kingdom’s separation from Europe will reduce its competitiveness for the foreseeable future”.
The argument that we can go global on trade by leaving the European Union is nonsense. We are already global, with 50% of our trade being with the European Union. Another 20% of our trade, including with Japan, is done through the European Union. The EU has far bigger clout in negotiating free trade deals than we do, and we should dream on when we talk about doing a free trade deal with India. It has only nine free trade deals around the world and not one is with a western country, let alone one with a hostile immigration policy.
We have benefited from being in the EU. We have had our cake and eaten it too. We have not been in the euro or in Schengen. Every analysis shows that by remaining in the European Union we would be far better off economically and in every respect—for example, in having access to people, with our 4% unemployment rate and labour shortage.
If we are putting our nation first, why are we forcing ourselves to implement Brexit, when we know that it will be worse for our country and the world says it will be worse for our country? People are much more informed than they were. We now know the reality of the ideological, utopian, crash-out-on-WTO-rules world of the Brexiteers, let alone the false promises made during the referendum. The polls consistently show that the people want a say and would vote to remain. You can fool all the people some of the time, but you cannot fool all the people all of the time.
The European Court has said that we can unilaterally withdraw from Article 50. That would be the fairest, most democratic thing to do, particularly for our youth, over 2 million of whom were not old enough to vote two years ago. The vast majority want to remain, including two of my children. We cannot deprive them of their future. It would be the fairest and most democratic thing to do, and the youth will turn out. This time it will be a vote not of 17.4 million but of more than 20 million. We need to take back control and I want my country back.
Baroness Altmann (Con)
My Lords, it is a pleasure to follow the noble Lord, Lord Bilimoria. I would like to support this withdrawal agreement and political declaration, and I would like to support our brave, determined and dedicated Prime Minister, who has worked so hard to try to deliver the promises of the leave campaign, but in all good conscience I am afraid that I cannot do so.
I have agonised over this and respect colleagues who are so frightened by the outrageous threats of no deal that they will support the proposals, despite believing that they will damage our country, but I am convinced that this would not be in the national interest. It is truly alarming to witness the peddling of fantasies and misrepresentation of reality that have permeated our political discourse. I will support the Motion of the noble Baroness, Lady Smith, and that will be consistent with every vote that I have registered in the whole Brexit debate.
The red lines of leaving the customs union, single market and ECJ jurisdiction are totally incompatible with the Good Friday agreement unless we impose a border in the Irish Sea that disunites our United Kingdom. That is what the backstop is about. Ending free movement and being able to agree new trade deals outwith the EU are incompatible with protecting our integrated supply chains, manufacturing jobs and services sector. These are real-world realities not explained to the country at the time of the referendum or the previous election.
We are here today because 17.4 million British people —37% of the 2016 voter base—voted to leave the EU. Parliament was apparently instructed by this advisory referendum to obey its result come what may. We are asked to believe that the instructions given to Parliament by these 17.4 million citizens, out of a population of 67 million, on the basis of promises that cannot and will not be delivered, justify depriving 50 million fellow countrymen of their EU rights and citizenship. Working in pensions, I have seen many examples of mis-selling in my lifetime but never have I seen the scale of deliberate deception that has come to light in connection with the 2016 referendum.
If you make a decision to buy a pension on the basis of a false prospectus, you have the right to change your mind or to be compensated. Yet those who are shown to have been wrong on all the claims they have made about Brexit so far are allowed to peddle more myths today, such as that leaving with no deal is perfectly okay. It is not okay. It is just another Brexit falsehood. Yes, Parliament has a duty to honour the will of the British people, but how many of those 17.4 million would have voted for the negotiated terms if they had known what Brexit would truly entail? We do not know.
We are told the 2016 referendum was the biggest exercise in democracy this country has ever seen. I cannot agree with that. Actually, it was a masterly display of political spin and mendacity. Leaving aside the financial irregularities, fraudulent use of large companies’ logos implying they supported leave, and false claims that Turkey and even Iraq and Syria would soon join the EU, voters were also misled into believing the EU was the cause of our country’s problems and that leaving would make us wealthier, improve our free trade and provide all the benefits of membership without the burdens or costs.
Many people were encouraged to vote for the first time in their lives in 2016; we are told that failing to obey their instructions would be a betrayal of democracy. Really? Any voter who believes that our democracy is about ordering MPs to do what people demanded on a past date, regardless of changed circumstances or negative consequences, is surely misrepresenting democracy. Voters who believed the campaign promises and then find out they were deceived are hardly going to have faith in our democracy. I believe our representative parliamentary democracy is far more threatened by ploughing ahead on the basis of this agreement or no deal at all.
Yes, we must respect the referendum, but we have honoured the result. Anyone who disputes that has not been paying attention for the last two years. We have triggered Article 50, passed legislation to permit withdrawal and negotiated for over 1,000 hours to find ways to achieve an exit from the EU that will satisfy the British people. But the outcome is nothing like the promises they voted for. All the focus is on the 17.4 million leave voters, not the 16.1 million remainers or 13.5 million non-voters. Given the deliberate misrepresentation, outright deception and false promises, coupled with the flawed remain campaign, can Members of Parliament, hand on heart, know whether this withdrawal agreement or no deal reflect the wishes of the majority now?
How many believed leaving would make the country richer? The Government’s own figures show that even the withdrawal agreement will not do so, never mind no deal. How many were just protesting against the establishment and trying to make their voices heard because they are dissatisfied with the Government and feel left behind? Which of the problems facing our country, which leavers may have been complaining about, will Brexit and this withdrawal agreement solve? Will they solve lack of infrastructure investment, the housing crisis, education standards, the need to improve productivity or the social care crisis? EU membership has not stopped us addressing all these burning problems but leaving would make them all worse.
There is so much Alice-in-Wonderland thinking permeating this debate. Sovereignty, self-determination and freedom do not require isolating ourselves and withdrawing from international partnerships, which help bridge differences. Indeed, I fear that history may well conclude that never has so much harm been caused to so many by so few, and that we sacrificed their tomorrow for our today.
Lord Reid of Cardowan (Lab)
My Lords, despite everything, our final Brexit destination remains a mystery—and, faced with a mystery, I am happy to take the suggestion made on Thursday to take the advice of that master of mystery, Sherlock Holmes:
“When you have eliminated the impossible, whatever remains, however improbable, must be the truth”.
So let us try it. In the House of Commons there is a significant majority against the Brexit deal on offer. It looks like an impossible objective. Since the EU refuses to substantially alter the deal, it will remain an impossibility. It is impossible, geographically and physically, to wish away the land border across Ireland between the UK and the EU. In Parliament, there is also a significant parliamentary majority against no deal—another impossibility. Canada-plus has died a death and it is impossible to see how the PM could accept a Norway-style deal, which would encompass the free movement which she has sworn to oppose, and would leave us with no voice, no vote and no veto over EU decisions that would crucially affect us. When we have dismissed or ruled out all the impossibles, the only sensible course of action is to put the issue back to the people. If, as the Government say, the deal before us really is the best and only Brexit deal possible, the people should be asked whether this Brexit deal is acceptable to them—or whether, given all that we now know, they wish to remain in the EU.
I say “all that we now know” because it will be obvious to all noble Lords that the consequences of the 2016 referendum were known to very few at the time of that decision. Over the past few months alone, a vast amount of legal, economic and constitutional information has been released to Parliament. Why? Because parliamentarians rightly insisted that they would not be capable of making a meaningful and informed decision in the absence of that information. Yet none of this information was made available to the public at the time when they were asked to make a decision. Of course, it may have made no difference—but the only way to find out is to ask them.
I have heard the arguments against having a reconsultation. It will be obvious to this House that I have never accepted them, any more than I would accept an argument against frequent general elections. One of these was of course announced by the now Prime Minister, and the period between that general election and the previous one was shorter than the period we have had since the referendum. I have been strengthened in my view by the Prime Minister, who in her speech today adduced the closely fought and closely decided Welsh referendum as evidence of the principle that you cannot oppose a referendum decision. She said that proved how a referendum had to be accepted by everyone in Parliament—except that it was not.
Following the Welsh referendum, the Conservative Party argued vehemently against the creation of the Assembly. Among the hundreds of MPs voting against the then Labour Government and the Government of Wales Bill in 1997 was the fresh-faced, newly elected MP for Maidenhead, Theresa May. Indeed, as late as 2005, the Conservative Party manifesto promised a second referendum on the Welsh Assembly—a people’s vote, if you will—which now seems to be wrong on principle. That was on whether to scrap the Assembly—which is all a bit awkward for those arguing on principle, as the noble Lord, Lord Lang, did today, that you can never have a reconsultation on a referendum.
I do not know what the final vote in a referendum might be—but whatever the result, it would not be sufficient without addressing the underlying perceptions which helped drive the result of the initial referendum. Austerity has been mentioned today, but I want to mention a word people are reticent about mentioning—immigration—and in particular the perception that, whatever the benefits of free movement, it contributes to a misuse of the benefits system by those arriving, and the deterioration of people’s access to public services. The tragedy is that both of these could be quite easily addressed by the Government.
First, it is perfectly possible, even under existing EU regulations, to ensure that those who come here have to take gainful employment within a reasonable time, or leave. In short: no job, no stay. Secondly, we need a more proportionate distribution of public funds directed towards areas of high immigrant populations, to offset the increased demand for public services that comes in the wake of high immigration.
Whatever the result of a people’s vote, it should be made clear that both these measures will be implemented. If MPs cannot agree, let the people decide. A people’s vote, with policies to address people’s concerns, offers the only potential way out of the terrible mess in which the country finds itself.
Lord Shipley (LD)
My Lords, in the two and a half years since the referendum, debate has continued on the relative merits of possible withdrawal options. That we are still debating these derives from the huge complexity of Brexit, driven in part by the triggering of Article 50 too early, and the Prime Minister’s decision to define unhelpful red lines equally early.
People did not vote in the referendum to become poorer. Nor can it be concluded that because a majority voted to leave the EU, those voting to do so wanted a hard Brexit or no deal. They were repeatedly told that they could have a soft Brexit, and many voted for just that. The result of that referendum was that advice was given to Parliament to negotiate a withdrawal. That advice was for Parliament, not just the Executive. It is, therefore, within the right of MPs to take greater control of the process. They were, after all, elected in 2017, a year after the referendum was held—so they do have that right.
Just before the Christmas Recess, the Government published their immigration White Paper. This is the much-delayed White Paper which was supposedly going to explain how the Government plan to bring down net immigration to the low levels promised by the Prime Minister in response to the referendum result. Yet, as the noble Lord, Lord Green of Deddington, pointed out in this Chamber at the time,
“far from reducing immigration, it is very likely that it will actually increase net migration, and might increase it considerably”.—[Official Report, 19/12/18; col. 1867.]
It seems that reality has dawned on the Government. The need for immigration to this country simply reflects the economic reality of the world we live in. Immigration has driven much of UK growth in recent years, and through that, growth in tax revenues for public spending. We cannot have a strong, entrepreneurial economy, should Brexit go ahead, without immigration and large numbers of international students in our universities.
Then there is the construction industry. The Federation of Master Builders has said that the Government will fail to deliver their commitment to building 300,000 homes per year unless the White Paper is substantially rewritten. While I am at one with those who say that we must invest far more in the training of British workers, rather than simply relying on a labour force from outside the UK, I also acknowledge the economic reality that retirements within the construction industry are significantly outstripping the number of new apprenticeships. If we are to build the homes the country so urgently needs we have to have the labour force to do it.
I will comment briefly on the impact of a no-deal Brexit on the north-east of England, where I live. At the end of November, the Government admitted that the north-east of England will be poorer because of Brexit. With no deal, the economy would be 10% smaller than it would have been. With the deal proposed, growth would be 2% lower. But, for me, the critical issue remains as it was in 2016, relating to the future willingness of overseas investors to invest their money in regions of England—or, indeed, across the whole of the UK—when we are outside the single market. When overseas investors can invest outside the UK to stay inside the single market, why would they choose to be inside the United Kingdom? I have come to the conclusion that a no-deal Brexit would be catastrophic. We know what the Japanese Government’s advice has been in recent days. We know of the Society of Motor Manufacturers and Traders’ warnings in recent weeks.
Then there are the universities. Universities in the north-east of England attract large numbers of EU students, yet the number of EU students registering now seems to be declining across the United Kingdom. Then there is the impact on world-leading research in our universities, often the result of collaboration and partnership across the EU. We must not lose access to this funding. It helps regional economies, as does the £400 million that the north-east of England is receiving in the current period from EU structural funding, for which there are no guarantees of continuation after 2020. Given that 57% of north-east trade goes to the EU compared with only 40% nationally, and given that 140,000 north-east jobs are reliant on EU trade, it matters to the region that we stay in the single market and the customs union—the frictionless trading structure we were promised and need.
The World Bank has warned that no deal would be a risk to economies across the world. The Bank of England has warned that no deal would lead to the worst crash in the UK since the 1930s. Should we believe gung-ho Brexiters who believe that leaving the EU will be easy, or should we listen to the director-general of the CBI, who said in Bristol last week:
“Make no mistake, no-deal cannot be ‘managed’”?
I choose the advice of the CBI.
We might find this week that the House of Commons has no majority for any of the options in front of it. I conclude that that means we should seek to extend Article 50 as a matter of urgency and that we will need a people’s vote, because parliamentary gridlock will have to be overcome.
Lord Jay of Ewelme (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Shipley. I have spent about 25 years of my life involved one way or another with the UK’s membership of and participation in the European Union. I have always believed that Europe is better off with the European Union than without it—think just of 1870, 1914 and 1940—and that both the European Union and the United Kingdom have benefited hugely from our membership. That is why I voted to remain.
The EU is, of course, imperfect. Relations within it are often fraught, as now, with immensely difficult issues of migration, the eurozone and the politics of its eastern European members. But all that has always seemed a reason why we should have the confidence to use our influence to help mould the European Union, as I believe we have over the years under successive Prime Ministers since Margaret Thatcher, so that it reflects and promotes our own interests. But we are where we are, or as the noble Lord, Lord Deben, said on the day after the referendum, “We are where we are but no one has the faintest idea where that is”, which is, alas, truer now than ever.
The present draft withdrawal agreement is imperfect, but it is not likely to be changed. The political declaration on the UK’s future relationship with the EU was never going to be much more than an annotated agenda for future negotiations, which will be long drawn-out, difficult and held with a new Commission, a new European Parliament and leaders of member states whose attention will be elsewhere. This is not an attractive prospect.
Even less attractive is leaving without a deal, which is surely far too risky to contemplate, as many have argued cogently and, in my view, rightly in this debate. The debate and vote that matters is in the House of Commons tomorrow. If the Commons cannot agree on the Prime Minister’s proposed agreement and cannot agree on another course either, I agree strongly with the noble Duke, the Duke of Wellington, that the right course would be to postpone the 29 March departure date to give the Government and the European Union more time. If that is not possible, the best option would be to have another referendum, although I do not say that with any huge enthusiasm.
Finally, I will say a word about Ireland in the light of recent visits as part of your Lordships’ European Union Committee to Dublin, Belfast, Derry/Londonderry and the border. Paragraph 11 of the Government’s recent paper on Ireland says:
“Northern Ireland is the only part of the UK with a land border with an EU Member State, and the free and unfettered movement of goods and people across that border is vital to the lives and livelihoods of the people on both sides of the border”.
I agree entirely, and I applaud the Prime Minister’s determination to ensure that that unfettered movement continues. I hope that her ambition will not in any way be whittled away. I applaud too the Prime Minister’s continuing commitment to the Good Friday/Belfast agreement, which has, over 20 years, led progressively to what those of us in the rest of the United Kingdom would regard as a normal life. But what worries me greatly in this ghastly Brexit saga is the deteriorating relationship between London and Dublin. I would be very grateful if the Minister, in replying to the debate, gave an absolute assurance that a continuing, constructive and close relationship with the Irish Government remains as important now and for the future, whatever it holds, as it has for the last 20 years.
Lord Hamilton of Epsom (Con)
My Lords, it is always a great pleasure to follow the noble Lord, Lord Jay. I put him in the mandarin class in your Lordships’ House—the number of your Lordships who seem to have been particularly traumatised by the decision of the British people to leave the EU. The mandarin class, of course, are people who have decided to spend a career in politics but not actually seek election. This gives them rather a different view about democratic votes from those of us who have. When I put this point to the noble Lord, Lord Butler, before Christmas he said that he thought the people should have the opportunity to vote again. On that basis, we could take a general election and produce all the same ridiculous arguments that people have been fed duff information and were too ignorant to understand the issues at stake, and therefore that general election should be held again. We trifle at our peril with democracy if we start saying that a referendum of this size—it was, let us face it, a very large turnout—should be overridden by a different decision.
My noble friend Lord Patten and the noble Lord, Lord Bilimoria, made the point that the country is very divided on this issue. I do not think we should get too excited. We are in the Westminster bubble here. Even if you walk just outside this building, you find people with placards protesting and waving flags. Some are determined that we should stay in the EU and others are grimly determined that we should get out. They stand next door to each other. There is a picture of a man from the remain side kissing a woman from the Brexit side standing outside Parliament.
So how divided are we? I suspect we would be much more divided if a second referendum were held. The decision would be reversed and a very large number of the people who voted to leave the EU would feel that Parliament had betrayed them, and would be given no option but to take to the streets because they could not look to Parliament to look after their interests anymore. When I mentioned this earlier, my noble friend Lord Patten said I was recommending civil disorder. I am not recommending it, but I suspect you might get it because this is a problem. If Parliament does not deliver what it is about to do—and what the people have decided it should do—of course people will look to operate outside Parliament if they do not think their Members of Parliament can represent them properly.
We are now in a ridiculous situation where these negotiations have been incredibly badly handled by my right honourable friend the Prime Minister. The noble and learned Lord, Lord Goldsmith, mentioned sequencing, which is a nice way of saying: why on earth did we allow the EU to make the Irish border item one on the agenda? As the noble Lord, Lord Morrow, has said, nobody in Ireland thinks there should be a border between north and south. He said that the position of the Taoiseach was somewhat ambivalent, but the latest thing I have heard from him is that he does not want a hard border between Ireland and Northern Ireland either. The Northern Irish do not want it, the southern Irish do not want it, the British do not want it, and even the EU has said it does not want it. I do not quite see who is going to put this hard border in, and cannot understand why we have spent so much time talking about it when it is something that would fall out of a free trade deal anyway.
The position we are now in is extraordinary. We have this absurd backstop that has been imposed on us by the EU and, as the noble and learned Lord, Lord Goldsmith, said, any guarantees on the backstop that we have been given by the EU are not really worth the paper they are written on. At the end of the day, they want us to stay in the EU, so why should we trust them not to hold us in there?
On a purely party-political point, reference has been made to the fact that the implementation period may go on until 2022. That happens to be when we will hold the next general election. If we are still half in the EU, still trapped in a customs union, what chance does my party have of winning an election, when Nigel Farage will undoubtedly set up another party to campaign against us in marginal seats? He will guarantee our defeat.
Lord Hamilton of Epsom
Yes, I am sure it will give enormous pleasure to the Liberal Democrats—although I am not sure they will benefit from it—but the fact is, he will. That is one reason why so many in my party in another place think that this deal is absolutely terrible and should be voted down.
That then leaves us with no deal, which is the default option. I am rather grateful that we have explored the possibility of no deal so much, because it is not really half as bad as everybody says. There has, however, been an awful lot of talk about crashing out. I quote my noble friend Lord Lilley, who says that what we will be doing is cashing in. That is the moment at which we will stop paying anything to the EU. We may have obligations, but they will certainly not be as massive as £39 billion. That will help to ease the passage of no deal, and make sure it is not as traumatic as so many people like to make it out to be.
Viscount Chandos (Lab)
My Lords, I rise to express my strong support for the Motion in the name of my noble friend Lady Smith of Basildon. In doing so, venturing perhaps where angels fear to tread, I will concentrate on its affirmation of the House of Commons’ primacy in determining the matter—and, with that, as my noble friend said in her opening remarks, its right and responsibility to,
“find a way through the current impasse”.—[Official Report, 9/1/19; col. 2228.]
First, on the deal itself, it has been argued that, as it is disliked by almost everyone, this is the result and nature of compromise. Like, I suspect, many of your Lordships, I have voted for the triggering of Article 50 and the withdrawal Act in the expectation that any agreement emerging from the Government’s negotiations would inevitably require significant compromise on all sides, given the multiple contradictions in, particularly, the Government’s original objectives. The breadth of dislike, however, is not itself an indication that it is a good compromise—precisely the opposite. The question is: could there be a better compromise?
Over recent weeks, admiration has also been expressed for the resilience and persistence shown by the Prime Minister in delivering an agreement of any sort while responding to the countless ministerial resignations and challenges to her position. I am sorry to say that my conclusion is that Mrs May is to Prime Ministers what Eddie the Eagle was to Olympic ski jumpers: respected for courage and determination, but a loner who either goes tumbling into a snowdrift or finishes 90 metres behind the other competitors.
It is an extraordinary achievement to have failed so comprehensively to build any form of consensus or co-operation across the parties, particularly when the policy of the Labour Party, succinctly summarised by my noble friend Lord Davies of Oldham, hardly presents a yawning chasm to bridge. Would a permanent customs union be a better compromise than what is envisaged by the Government? Yes, without a doubt. Would the adoption of an EEA, EFTA, Norway-plus-based arrangement be better still? Yes, absolutely—without underestimating the challenge of inspiring the necessary degree of confidence in the country at large that, in particular, their reasonable concerns about immigration can be addressed by the safeguarding measures in the EEA agreement. Strong and specific national measures are also needed, such as a migration impacts fund, which was abolished by the coalition Government at a substantially higher level than the Labour Government set it up for in 2009.
The rising cross-party level of support for Norway-plus in the House of Commons, as well as the support for it from prominent Brexiters such as the noble Lord, Lord Owen, is perhaps a cause for cautious optimism. The Members of the House of Commons will of course come to their own conclusions, with your Lordships’—I hope—friendly counsel. How then, can they,
“find a way through the current impasse”?—[Official Report, 9/1/19; col. 2228.]
Even that professional fantasist Dr Fox is predicting that the Government will lose tomorrow’s vote. The noble Lord, Lord Howell of Guildford, suggested on Wednesday that the Government should make the vote one of confidence, as did the noble Lord, Lord Skidelsky. Since his long and distinguished career in the House of Commons, the introduction of the Fixed-term Parliaments Act has made that impossible. But he is right: morally, it is a matter of confidence, so I very much hope that my right honourable friend the leader of the Opposition will table an immediate vote of no confidence.
Who knows what the result would be? I am not sure that the confident predictions that Mrs May would survive would necessarily prove correct. Do I believe that a general election would, even with an extension of Article 50, be helpful in resolving the Brexit stalemate? That is far from certain. But under the Fixed-term Parliaments Act, a general election is called only if no other Government has been formed within 14 days who have been able to win a positive vote of confidence. Surely that is how the House of Commons can best and most effectively assert control. Not by setting up a parallel phantom Government, but by giving its clear support for a defined period to a Government—whether a formal coalition or a minority one—that can take the existing withdrawal agreement and both modify the political declaration, to customs union or Norway-plus, and introduce a cross-party political process for its subsequent implementation.
I recognise that while it is easy to advocate this from the safety and tranquillity of this House, this is a big ask for the Members of the House of Commons. But if they are unable to seize that sort of opportunity, the alternative would inevitability be a general election, and in all probability a referendum after that.
Lord Loomba (CB)
My Lords, I have listened to many of the speakers during the course of this debate, both in December and last week, and what appears to stand out most clearly is that we are facing an unprecedented challenge. The Cabinet has been divided, Parliament is divided and the people are divided. Despite all the efforts made by our Prime Minister—for whom I have some sympathy, as she was given an impossible task—she has not been able to achieve a withdrawal agreement which has, on the face of it, enough support to get it through this Parliament. This leads me to ask: why are we in this situation?
From the beginning, there have been errors. Initially, the previous Prime Minister and his Government made a serious error in calling the referendum without first fully informing the country about the pros and cons of remaining in or leaving the EU. To avoid the problems we now face, he should have ensured that a condition was in place for the referendum result; for example, a 60% threshold. Then, once the referendum process was under way, many leave campaigners misled the public with gross omissions or distortions of fact. Further, as we all know, once they had won, the main proponents of leave—who had promised the earth, including that we will take control of immigration and our borders, and put £350 million into the NHS every week—did not take their promises forward. Perhaps the biggest error was not to have formed a cross-party consensus for the kind of withdrawal agreement and future relationship that Parliament could support before sending our negotiators to Brussels.
We are now in a serious situation and our leaders must recognise that this is a national crisis. The economy is at risk, which means that people’s livelihoods are at risk. It is time for straightforward common sense to prevail. Members of Parliament must put aside any differences and not pursue their own political agendas. Instead, they must act in the national interest alone. Those saying that the Prime Minister’s deal is not a good deal have offered no better alternative and are being unfair to those doing their best to meet this challenge. As it stands at this juncture, with no time left to negotiate a new withdrawal agreement to replace the current one on offer, and with the reality that, as my noble and learned friend Lord Hope emphasised last week, on 29 March the EU treaties will cease to apply to the United Kingdom, the only realistic options are either to accept the Prime Minister’s deal or to quickly extend Article 50 to gain more time.
The Prime Minister’s deal may not be perfect but, given where we are at this point, I think we should accept it and deliver certainty and clarity for citizens, businesses, employers and employees. I echo what my noble and learned friend Lord Hope said—that the current deal is not the end of the story; it is only an agreement for the withdrawal and implementation period, not our final future agreement with the EU. That agreement will be dealt with in the two years after 29 March, but only if we have a withdrawal agreement in place on that date, which I sincerely hope will happen. I urge my colleagues to do the right thing for the country.
Lord Shinkwin (Con)
My Lords, the Secretary of State for Exiting the EU said at the weekend:
“For the sake of our democracy, we cannot let slip the prize of Brexit”.
I agree, which is why, tomorrow, I hope MPs will disown this democracy-eroding deal.
This deal is not in the national interest. The only thing national about the farcical situation of abject surrender that we are in is that it is a national disgrace. What is wrong with us that we should talk ourselves down so much? Barack Obama won two terms as President with the inspirational campaign cry, “Yes, we can”, while here in Britain, all that our establishment seems inclined to shout is, “No, we can’t!” What sort of message is that to send to the bullies of Brussels or, indeed, the people? How the Eurocrats must delight in our defeatism—a defeatism shrouded in doublespeak which should fool no one. Under this deal we are not leaving. Some may dream of the headline “We’ve sealed the deal”, but the only thing this deal would seal is the fate of our democracy.
The obvious appeal, to some, of the radical Italian parties led by their deputy Prime Ministers and the violent French “yellow vests” protest movement is surely symptomatic of a deepening and dangerous disaffection with democracy. Is there not a lesson to be learned from the democratic disarray in Italy, France and now Germany, where, unbelievably, as my noble friend Lord King of Bridgwater told us, we are witnessing a neo-Nazi renaissance with the breakaway of an even more extreme splinter of the far-right AfD? The tectonic plates are shifting on mainland Europe because more and more voters doubt the ability, even the desire, of their political elites to honour their word and to implement policy commitments, on the very basis of which the people entrusted them with power. Yet our political elite—our establishment—behaves as if this simple, obvious rule somehow does not apply to them.
The Secretary of State for Exiting the EU argues that this deal delivers on Brexit. I beg to differ. This deal fails to deliver on Brexit, for reasons rehearsed ad nauseam in both this House and the other place. To quote his immediate predecessor, Dominic Raab, this deal would keep us locked into swathes of EU laws without any democratic say, threaten the integrity of the UK and prevent us from pursuing an independent trade policy. It suffocates the opportunities that Brexit offers. It does all that and more because, should it ever become a binding international treaty, I fear it would also mark the end for our democracy. Our democracy’s very viability and its durability depend on people’s trust being honoured. So Mr Raab’s successor as Secretary of State is surely absolutely right to say that the stakes could not be higher. And the Prime Minister knows that because she refers to,
“a catastrophic and unforgivable breach of trust in our democracy”,
if the UK remains in the EU. That is exactly so. As the journalist Janet Daley wrote in early December, ultimately,
“pernicious mistrust will be … corrosive to faith in democracy”.
I wonder if the battle has become so intense that we have lost sight of what we all want more than anything else—surely that is a stronger democracy, to enhance rather than diminish government’s accountability to the people. So I agree with my noble friend Lord Cavendish of Furness that we need to be open to the option of a clean break on WTO terms. As someone who has had more than 50 breaks, I think I can claim to speak with some authority when I say that a clean break is better than an awkward break. A clean break would not only bring accountability home and strengthen democracy, it would also heal our divisions, far better than this deal, a second referendum or a Norway-style deal, all of which would only perpetuate Brexit and thus prolong the agony, possibly indefinitely. Of course, exiting on WTO terms would not be the end; it would be the means to an end—a negotiated deal on better terms.
In conclusion, we should surely be saying to Brussels, “Yes, we can”, instead of supporting this defeatist deal which would do incalculable harm to our democracy. That is why I urge colleagues in the other place to disown this deal tomorrow, show that they respect the people’s vote of 2016 and strengthen democracy.
Leaving the European Union
(5 years, 10 months ago)
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The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, with the leave of the House I shall now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, Mr Speaker, I would like to update the House on the further assurances and clarifications we have received from the European Union on the Northern Ireland protocol.
As a proud unionist, I share the concerns of Members who want to ensure that in leaving the European Union we do not undermine the strength of our own union in the UK. That is why, when the EU tried to insist on a protocol that would carve out Northern Ireland from the rest of the UK’s customs territory, I said no. I secured instead a UK-wide temporary customs arrangement, avoiding both a hard border on the island of Ireland and a customs border down the Irish Sea. I also negotiated substantial commitments in the withdrawal agreement and the political declaration to do everything possible to prevent the backstop ever being needed and to ensure that, if it were, it would be a temporary arrangement. But listening to the debate before Christmas, it was clear that we needed to go further, so I returned to Brussels to faithfully and firmly reflect the concerns of this House.
The conclusions of December’s Council went further in addressing our concerns. They included reaffirming the EU’s determination to work speedily to establish, by 31 December 2020, alternative arrangements so that the backstop will not need to be triggered. They underlined that if the backstop were nevertheless to be triggered, it would indeed apply temporarily. They committed that, in such an event, the EU would use its best endeavours to continue to negotiate and conclude as soon as possible a subsequent agreement that would replace the backstop. And they gave a new assurance that negotiations on the future relationship could start immediately after the UK’s withdrawal.
Since the Council, and throughout the Christmas and new year period, I have spoken to a number of European leaders, and there have been further discussions with the EU to seek further assurances alongside the Council conclusions. Today, I have published the outcome of these further discussions, with an exchange of letters between the UK Government and the Presidents of the European Commission and European Council. The letter from President Tusk confirms what I said in the House before Christmas: namely, that the assurances in the European Council conclusions have legal standing in the EU.
My right honourable and learned friend the Attorney-General has also written to me today confirming that, in the light of the joint response from the Presidents of the European Council and the Commission, these conclusions,
‘would have legal force in international law’,
and setting out his opinion, ‘reinforced’ by today’s letter,
‘that the balance of risks favours the conclusion that it is unlikely that the EU will wish to rely on the implementation of the backstop provisions’.
Further, he writes that it is therefore his judgment that,
‘the current draft Withdrawal Agreement now represents the only politically practicable and available means of securing our exit from the European Union’.
I know that some Members would ideally like a unilateral exit mechanism or a hard time limit to the backstop. I explained this to the EU and tested these points in negotiations, but the EU would not agree to this because it fears that such a provision could allow the UK to leave the backstop at any time without any other arrangements in place and require a hard border to be erected between Northern Ireland and Ireland. I have been very clear with the EU that this is not something we would ever countenance—the UK is steadfast in its commitment to the Belfast agreement and would never allow a return to a hard border—but it is not enough simply to say this. Both sides also need to take steps to avoid a hard border when the UK is outside the EU. Failing to do so would place businesses on the island of Ireland in an impossible position, having to choose between costly new checks and procedures that would disrupt their supply chains or breaking the law.
So we have the backstop as a last resort, but both the Taoiseach and I have consistently said that the best way to avoid a hard border is through the future relationship—that is the sustainable solution—and that neither of us wants to use the backstop. So, since the Council, we have been looking at commitments that would ensure we get our future relationship or alternative arrangements in place by the end of the implementation period, so that there will be no need to enter the backstop and no need for any fear that there will be a hard border. That is why, in the first of the further assurances that it has provided today, the EU has committed to begin exploratory talks on the detailed legal provisions of the future relationship as soon as this Parliament has approved the deal and the withdrawal agreement has been signed. The EU has been explicit that this can happen immediately after this House votes through the agreement.
If this House approves the deal tomorrow, it would give us almost two years to complete the next phase of the negotiations, and of course we would have the option to extend the implementation period, if further time were needed, for either one or two years. It is my absolute conviction that we can turn the political declaration into legal text in that time, avoiding the need for the backstop altogether.
These letters also make clear that these talks should give,
‘particular urgency to discussion of ideas, including the use of all available facilitative arrangements and technologies, for replacing the backstop with permanent arrangements’,
and, furthermore, that those arrangements,
‘are not required to replicate’—
the backstop ‘provisions in any respect’. So, contrary to the fears of some honourable Members, the EU will not simply insist that the backstop is the only way to avoid a hard border. It has agreed to discuss technological solutions and any alternative means of delivering on this objective, and to get on with this as a priority in the next phase of negotiations.
Secondly, the EU has now committed to a fast-track process to bring our future trade deal into force once it has been agreed. If there is any delay in ratification, the Commission has now said it will recommend provisionally applying the relevant parts of the agreement, so that we would not need to enter the backstop. Such a provisional application process saved four years on the EU-Korea deal and could prevent any delays in ratification by other member state parliaments from delaying our deal coming into force.
Thirdly, the EU has provided absolute clarity on the explicit linkage between the withdrawal agreement and the political declaration, and made that link clear in the way the documents are presented. I know that some colleagues are worried about an imbalance between the withdrawal agreement and the political declaration, because the EU cannot reach a legal agreement with us on the future relationship until we are a third country, but the link between them means the commitments of one cannot be banked without the commitments of the other. The EU has been clear that they come as a package. Bad faith by either side in negotiating the legal instruments that will deliver the future relationship laid out in the political declaration would be a breach of their legal obligations under the withdrawal agreement.
Fourthly, the exchange of letters confirms that the UK can unilaterally deliver all of the commitments that we made last week to safeguard the interests of the people and businesses of Northern Ireland and their position in our precious union, for it gives clear answers to address some questions that have been raised since the deal was reached—that the deal means no change to the arrangements that underpin north-south co-operation in the Belfast agreement; that Stormont will have a lock on any new laws the EU proposes should be added to the backstop; and that the UK can give a restored Northern Ireland Executive a seat at the table on the joint committee overseeing the deal.
President Juncker says explicitly in his letter that the backstop,
‘would represent a suboptimal trading arrangement for both sides’.
We have spoken at length about why we want to avoid the backstop, but it is not in the EU’s interests either, for this backstop gives the UK tariff-free access to the EU’s market, and it does so with no free movement of people, no financial contribution, no requirement to follow most of the level playing field rules and no need to allow EU boats any access to our waters for fishing. Furthermore, under these arrangements, UK authorities in Northern Ireland would clear goods for release into the EU single market with no further checks or controls. That is unprecedented and means the EU relying on the UK for the functioning of its own market, so the EU will not want this backstop to come into force—and the exchange of letters today makes clear that if it did, the EU would do all it could to bring it to an end as quickly as possible.
Nevertheless, I fully understand that these new assurances still will not go as far as some would like. I recognise that some Members wanted to see changes to the withdrawal agreement, a unilateral exit mechanism from the backstop, an end date or rejecting the backstop altogether, although it should be said that that would have risked other EU member states attempting to row back on the significant wins we have already achieved, such as on control over our waters or on the sovereignty of Gibraltar. But the simple truth is this: the EU was not prepared to agree to this, and rejecting the backstop altogether means no deal. Whatever version of the future relationship you might want to see—from Norway to Canada, to any number of variations—all of them would require a withdrawal agreement and any withdrawal agreement would contain a backstop. That is not going to change, however the House votes tomorrow. To those who think we should reject this deal in favour of no deal because we cannot get every assurance we want, I ask: what would a no-deal Brexit do to strengthen the hand of those campaigning for Scottish independence—or, indeed, those demanding a border poll in Northern Ireland? Surely that is the real threat to our union.
With just 74 days until 29 March, the consequences of voting against this deal tomorrow are becoming ever clearer. With no deal, we would have no implementation period, no security partnership, no guarantees for UK citizens overseas, and no certainty for businesses and workers such as those I met in Stoke this morning. We would see changes to everyday life in Northern Ireland that would put the future of our union at risk. And if, rather than leaving with no deal, this House blocked Brexit, that would be a subversion of our democracy, saying to the people we were elected to serve that we were unwilling to do what they had instructed.
So I say to Members on all sides of this House—whatever you may have previously concluded—over these next 24 hours, give this deal a second look. No, it is not perfect. And yes, it is a compromise. But when the history books are written, people will look at the decision of this House tomorrow and ask: did we deliver on the country’s vote to leave the European Union? Did we safeguard our economy, our security and our union? Or did we let the British people down? I say we should deliver for the British people and get on with building a brighter future for our country by backing this deal tomorrow. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Smith of Basildon
My Lords, I thank the Leader for repeating the Statement. The Prime Minister so often tells us that nothing has changed. As the clock continues to run down to 29 March, it is worth reminding ourselves that, while Mrs May’s red lines have not shifted—with tragically predictable results—plenty of other things have. We were told that there would be no “running commentary” on the Brexit talks, as that would undermine the national interest, yet a prime ministerial EU statement has become an almost weekly event. We were told that “Brexit means Brexit”, but, even now, the Government still have not got an agreed definition. And we were told that,
“no deal is better than a bad deal”,
yet the Prime Minister has warned MPs that voting against her deal, as we heard just now, risks the UK crashing out without a deal—which, she finally acknowledges, “would cause significant disruption”. We know that it would be catastrophic.
However, there is one area where nothing has changed. As the Leader said, today we were given the opportunity to read an exchange of letters between the Prime Minister, President Juncker and President Tusk. What did we find out? First, that the backstop is still a backstop; and, secondly, that documents continue to have the legal status they have always had. The Prime Minister promised to obtain legally binding changes to the deal, in order to address the concerns of her Back-Benchers and the DUP. The advice of her Attorney-General shows that she has failed. He confirms that, though the December Council conclusions have legal standing,
“they do not alter the fundamental meanings of”,
the provisions of the Northern Ireland protocol. He is clear that today’s letter from the EU is only useful in terms of making a “political”—a political, not a legal—
“judgment as to the likelihood of the backstop coming into force”.
I have two questions for the Leader of the House. Does she accept, as it says in the letter, that the backstop remains,
“unless and until it is superseded by a subsequent agreement”?
Does she agree that that comment, in the letter from Tusk and Juncker, is accurate? Secondly, more than a month has now passed since the first meaningful vote was pulled. Does the Leader of the House really believe that it has been worth the wait?
Lord Newby (LD)
My Lords, I would like to thank the Leader for repeating the Statement. I was happy to have the Statement repeated, on the basis that it might contain something new—which speakers in our debate might wish to take into account in their subsequent speeches. However, it is now obvious that the Prime Minister’s Statement says nothing new of substance whatsoever and therefore I do not intend to delay the debate further by commenting on it. I hope that, on that basis, other noble Lords will curb their enthusiasm for asking questions, so that we can get back to the debate as soon as possible.
Baroness Evans of Bowes Park
I thank the noble Baroness and noble Lord for their brief comments. I shall attempt to keep my comments brief, too. I will quote a couple of elements of the Attorney General’s advice, as the noble Baroness did. The Attorney-General says in his letter today:
“I agree that in the light of this response, the Council’s conclusions of 13 December 2018 would have legal force in international law and thus be relevant and cognisable in the interpretation of the Withdrawal Agreement”.
He says also that, in his judgment,
“the current draft Withdrawal Agreement now represents the only politically practicable”,
but also the only,
“available means of securing our exit from the European Union”.
The letter also makes clear that there are alternatives to the backstop that can be considered. Therefore, progress has been made and there have been further reassurances from the EU. As the Statement makes very clear, the Prime Minister is well aware that those may not satisfy everyone, but progress has been made.
Viscount Hailsham (Con)
My Lords, if the House of Commons rejects the deal tomorrow, as seems very probable, would my noble friend agree that any consequential outcome other than crashing out without a deal—which seems to be an outcome that has no parliamentary majority—will require more time? In those circumstances, would she agree that, in the event of the deal being rejected tomorrow by the House of Commons, urgent steps will be taken to persuade the European 27 to extend the exit date—or, if that is not possible, to revoke Article 50?
Baroness Evans of Bowes Park
We have been clear that it is not our policy to withdraw or revoke Article 50. However, the Prime Minister has been very clear that we are focusing on winning the vote tomorrow. Our intention has always been to respond quickly and provide certainty on the way forward in the event that tomorrow’s vote does not pass, both in terms of setting out our next steps and any subsequent vote, and that is what we will do.
Lord Wigley (PC)
My Lords, the Prime Minister says:
“With no deal we would have no implementation period, no security partnership, no guarantees for UK citizens overseas, and no certainty for businesses and workers”.
In those circumstances, why does she not rule out no deal?
Baroness Evans of Bowes Park
The noble Lord will be aware that in the current situation no deal is the default position if a deal is not agreed. We are having a vote tomorrow, with a good deal on the table for a strong relationship between the UK and the EU. It is the only deal the EU says is on the table. That is why the Prime Minister and all colleagues are working hard to make sure that the deal passes. We do not want no deal. There is a deal on the table. I urge MPs to vote for it.
Lord Howell of Guildford (Con)
My Lords, is my noble friend aware—she probably is not—that this morning I visited an exhibition which contained a book that included Dante’s “Map of Hell”, and that it bore a strong resemblance to the present state of the other place? Does she not agree that in the period of paralysis that seems to exist in the other place, the real emphasis needs to be on showing that the withdrawal agreement is only a step-by-step part of a very long process? It took us 45 years to become entangled with the European Union, and it is bound to take us years to fully disentangle ourselves without doing immense damage to our economy. So will she advise her friends to put more emphasis on the fact that this is a journey? It is a beginning, there are many difficulties and opportunities ahead, and it is step by step. Those who think that we can with one leap be free are showing that they are long on opinion but very short on experience.
Baroness Evans of Bowes Park
I agree with the sentiments expressed by my noble friend and I may well search out that book.
Viscount Waverley (CB)
My Lords, to what extent will any delay be held hostage by the changing political face on the continent, including any changes in the Commission?
Baroness Evans of Bowes Park
As I have said, I am not going to prejudge what will happen in the House of Commons tomorrow. I am not in a position to do so. We will be working hard to win the vote so that we can deliver on the result of the referendum and implement a strong partnership between the EU and the UK going forward, and a withdrawal agreement that will ensure a smooth exit from the EU.
Lord Hay of Ballyore (DUP)
My Lords, I do not often agree with the leader of the Lib Dems in this House, but I have to say that the Statement is hardly worth commenting on. Nothing has changed. Despite letters of reassurance from the European Union, there are no legally binding assurances, as the Prime Minister talked about and promised in December. In fact, nothing has changed. We have often said as a party that we want a balanced and fair approach to leaving the European Union. Unfortunately in this situation, we have also said continually that we will not support anything that separates Northern Ireland from the rest of this United Kingdom. That has been our message continually, both in this House and to the Prime Minister. So as far as we as a party in this House are concerned, nothing has changed.
Baroness Evans of Bowes Park
I am sorry that that is the view of the noble Lord. The exchange of letters does set out four key assurances. We believe that progress has been made. I repeat, as we have repeated constantly over the past few months, that neither the UK nor the EU wants the backstop to happen. It is an insurance policy. We and the EU have been very clear that there are alternatives to the backstop, and the House of Commons will be given a chance to discuss those if we do not have our future relationship in place—which we are all working hard to do and which the EU has committed again in these letters to work towards.
Lord Reid of Cardowan (Lab)
The Leader of the House has suggested that the biggest threat to the unity of the United Kingdom would be to have a second referendum. Will she reflect on the fact that actually the biggest threat to the United Kingdom would be if the Government were to create the circumstances in which those who wished to break up the United Kingdom were better placed to win such a referendum, particularly if the Government followed a course of action that was opposed by the people of Scotland and the people of Northern Ireland? Does she recall that there is a thing called unintended consequences? However much the Government wish—as we in this House wish—to retain the unity of the United Kingdom, they are in grave danger of creating circumstances in which, if a referendum is held in other parts of the UK, that unity may be put under threat.
Baroness Evans of Bowes Park
The noble Lord is right—which is exactly why the Prime Minister has been working constantly and hard to get a deal on the table that both preserves the unity of the UK and allows us a strong relationship with the EU. That is the deal that is on the table. We are now asking MPs to vote for that deal so that we can move forward and start focusing on the strong future relationship with the EU that we want so that we can develop that partnership.
Lord Forsyth of Drumlean (Con)
My Lords, on the subject of the threat to the United Kingdom, does my noble friend recall that the party with the biggest percentage of its supporters voting for Brexit was the Scottish National Party? The threat to the United Kingdom comes from this deal, which purports to allow one part of the United Kingdom to be treated differently by Brussels from the rest. My noble friend talks about the need for the backstop and for this deal because of the need to avoid a hard border. The Irish Government have said that they do not want a hard border and would never implement one; the Commission has said that it does not want a hard border and would never implement one; and the Government have said that they do not want a hard border and would never implement one. So who exactly is going to implement this hard border?
Baroness Evans of Bowes Park
I thank my noble friend. As the Statement makes clear, the backstop is an insurance policy. None of us has an intention to use it and so we have found other mechanisms. If we do not get the future relationship in place by the end of December 2020, which is what we all want, the EU has made it very clear that we need an insurance policy to make sure that what we all agree that we do not want—a hard border—cannot and does not happen. My noble friend will understand that on 30 March Brexit will create a wholly new situation, which is that for the first time the Northern Ireland/Ireland border will become an external frontier of the EU’s single market and customs union. This poses significant challenges which we are attempting to address.
Lord Cormack (Con)
My Lords, in expressing the hope that the other place will endorse the Prime Minister’s deal, I revert to the point made by my noble friend Lord Hailsham. If the House of Commons does not approve this deal tomorrow, it will be utterly impossible to deliver on a March deadline.
Baroness Evans of Bowes Park
As I have said, I am not prejudging the outcome of tomorrow’s vote. I have also said that it has always been our intention to respond quickly and provide certainty if the vote is lost, and that is what we will do about our next steps.
Lord Hamilton of Epsom (Con)
My Lords, if my noble friend Lord Hailsham is right and the House of Commons votes down the deal tomorrow, the default position is no deal. Does my noble friend accept that no deal is much more damaging to the EU than it is to us and, in addition, that we would not pay it £39 billion? Does she not expect really quite major concessions from the EU at the last minute—the 11th hour—possibly way into March?
Baroness Evans of Bowes Park
I can only reiterate what I have said to noble Lords on many occasions. We believe that this is a good deal. We want MPs to vote for that deal. That is what we will continue to work towards. If the vote is lost tomorrow, we will return with our next steps.
Lord Browne of Belmont (DUP)
My Lords, the backstop fundamentally undermines Northern Ireland’s position in the United Kingdom and runs contrary to the principles of consent contained in the Belfast agreement. When the Prime Minister delayed the vote in December, she said that she was going to get legally binding assurances. Does the Leader of the House agree that this letter is certainly not legally binding?
Baroness Evans of Bowes Park
The EU and, indeed, the Attorney-General have said that these letters do have legal force.
Lord Lamont of Lerwick (Con)
My Lords, on that point, is it not clear that the Attorney-General’s letter is a political letter? It is about the political risk—it says that the balance of political risk is in this way. But, on the legality of the backstop, the Leader did not refer to the fact that the Attorney-General wrote in his letter that,
“they do not alter the fundamental meanings of its provisions as I advised them to be on 13 November 2018”.
In other words, what has been obtained has no legal effect.
Baroness Evans of Bowes Park
The letter does say that, but it also says that,
“the Council’s conclusions of 13 December 2018 would have legal force in international law and thus be relevant and cognisable in the interpretation of the Withdrawal Agreement”.
Lord Patten of Barnes (Con)
Will the Leader of the House confirm the veracity of what my noble friend Lord Howard said in our debate before Christmas: namely, that we have an unfettered right to leave the European Union under Article 50 but that we need the agreement of the other member states to leave the backstop?
Baroness Evans of Bowes Park
As we have made very clear, neither the EU nor the UK wants the backstop. We do not want to go into it. The letter reiterates once again other mechanisms such as looking at facilitative technology and extending the implementation period. Other options may be available. Parliament will be given the right to discuss and vote on the option it wants if we need it—but we are committed to implementing the future relationship by the end of December 2020 so that none of those situations comes to pass. We will focus on that.
Lord Morris of Aberavon (Lab)
My Lords, on the issue of legal force, referred to in the Attorney-General’s letter, has either the EU or Her Majesty’s Government sought an advisory opinion from the European Court?
Baroness Evans of Bowes Park
I stand by the letter published today by the Attorney-General.
Lord Dobbs (Con)
My Lords, the Statement uses the term “temporary” a great deal. Noble Lords will be aware that income tax was introduced as a temporary measure in 1799—and I still live in hope. Returning to the question asked by my noble friend Lord Forsyth of Drumlean, neither we nor the Irish want a hard border, and apparently the European Union does not want one, either—so who will erect this hard border if the Prime Minister’s tireless efforts do not bear fruit tomorrow? I want to know in which direction to point my tanks. Nobody wants an Irish border.
Baroness Evans of Bowes Park
The noble Lord is right that absolutely nobody wants a hard border in Ireland, but the EU has been consistently clear in discussions that it wants an insurance policy. We have been consistently clear that we want to abide by the Good Friday/Belfast agreement. As we have said, the backstop is an insurance policy that none of us wishes to use. As has been stated by the EU and ourselves, we will use our best endeavours and work in good faith to make sure that that does not happen.
The Archbishop of York
My Lords, I welcome the Statement read by the Leader of the House. My question is simple: I know that there is another 24 hours to go, but what steps do the Government intend to give the other place? At the moment, the EU sees us as part of it. The difficulty of negotiating from within is that we cannot give anything away until we have left. The EU has a very legalistic view of what it is to be a member. What will the Government do to explain that this creates a difficulty?
Furthermore, what assurances will the Government give to create better trust between our four nations and the European Union? At the moment, as I heard in the debate, it sounds as though we have not taken on board the fact that this is purely about getting out, beginning negotiations and setting the parameters of the future conversation. What will the Government do to get it across that this is not ultimately about the final deal?
Baroness Evans of Bowes Park
That is absolutely correct. Until now, we have been talking largely about the withdrawal agreement and the divorce settlement. In the letter published today, one assurance is that the EU has committed to beginning discussions straightaway on a fast-track process to bring our future trade deal into force once it has been agreed. It has also made an explicit link between the withdrawal agreement and the political declaration, which sets out the parameters of our future relationship. So if the vote is won tomorrow, we can move on to the next stage—which, frankly, is what the British people want us to do.
Baroness Quin (Lab)
My Lords, although nobody wants a hard border between Northern Ireland and the Republic, is it not the case that if we leave without any deal whatever, there will automatically be a hard border?
Baroness Evans of Bowes Park
As we have said, we are working hard to get the deal through for that exact reason. No deal would create issues in Ireland, which is why we have been working so hard to ensure that we can move forward. Tomorrow, the Prime Minister will make the case in the Commons once again for people to support the deal so that we can move on to the future relationship and the strong partnership we want between the UK and the EU.
Lord Hannay of Chiswick (CB)
My Lords, can the Minister help the House by describing the implications of the most favoured nation provisions of the World Trade Organization—of which both we and the European Union are members—which do not permit us to not charge tariffs on any border with a country with which we are not in a free trade or customs union relationship at the time? If she explained that, it would answer quite a lot of the questions that have been asked.
Baroness Evans of Bowes Park
We do believe that we can do better than trading under WTO rules, which would mean tariffs and quotas on British goods going to the EU. For instance, trading on WTO rules would mean a 10% tariff on cars we sold to the EU and average tariffs of more than 35% on dairy products. That is why we are focused on achieving a broader, deeper and stronger economic partnership with the EU—a result flowing from the political declaration if the deal is passed tomorrow.
Lord Mackay of Clashfern (Con)
My Lords, a hard border is defined as a situation where the conditions for going one way are different from the conditions for going the other way. That can happen without anybody wanting it if they wish to have different conditions. Therefore, the point of this is to ensure that future arrangements at the Irish border will be such that the conditions are the same whether you are going from north to south or from south to north.
Baroness Evans of Bowes Park
I agree entirely with my noble and learned friend. We do not want a hard border between Ireland and Northern Ireland, which is why we urge MPs to support the deal.
Lord Watts (Lab)
My Lords, is it not right for the European Union to want to protect its borders after Brexit? Did it not put the backstop in place because the Prime Minister had failed to find an alternative?
Baroness Evans of Bowes Park
No. As we have said, both the EU and the UK have made it clear that other alternatives are on the table, such as an extension of the implementation period or technological developments. We have both committed to getting our future relationship agreed by the end of December 2020, which will mean that neither the backstop nor any of the other options will be needed. The EU and the UK have both made it clear that they want to avoid a backstop, which is why we have other options on the table. We need to get the withdrawal agreement agreed so that we can move forward and look towards our future relationship. We want to look to the future, not backwards.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, the Leader told the House that nobody wants the backstop, but the EU is demanding that the backstop be put in place as an insurance policy. Surely then the EU’s purpose is to hold the backstop as a threat over the head of the United Kingdom to ensure compliance with EU demands in further negotiations.
Baroness Evans of Bowes Park
I do not agree. The backstop we have negotiated gives the UK tariff-free access to the EU market without the free movement of people, without financial contributions, without having to follow most of the level playing-field rules and without allowing the EU to have access to our waters. That is not something that the EU wants.
Lord Pearson of Rannoch (UKIP)
My Lords, have the Government read the paper published yesterday by Economists for Free Trade entitled “No deal is the best deal for Britain”? If not, will they do so and answer it publicly? Clearly, the scare stories that have been put around about what will happen if there is no deal are complete nonsense, to put it mildly.
Baroness Evans of Bowes Park
I can only reiterate that we believe that there is a good deal on the table, which MPs will vote on tomorrow. I hope that they support it so that we can move forward.
Brexit: Withdrawal Agreement and Political Declaration
(5 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
22:02 - Division on Baroness Smith of Basildon’s Motion - Ayes: 321 / Noes: 151 - Motion agreed.
Lord Russell of Liverpool (CB)
My Lords, I hope that the rest of the House found the previous half hour as life-affirming and helpful as I did. If so, if there is a mass exit to the bar, noble Lords have my complete endorsement and understanding.
I had the privilege of speaking on the second day of the last iteration of this debate, so I shall try to be brief. At the conclusion of my contribution, the speaker from the Government Back Benches who followed me suggested that my observations proved,
“he is not a politician. His view of politics is highly idealistic”.—[Official Report, 6/12/18; col. 1196.]
As a Cross-Bencher who first entered your Lordships’ House in 1982, I am inclined to take that as more of a compliment than a rebuke.
We are in uncharted waters. On the Cross Benches, we are privileged to have colleagues who possess an extraordinary array of talent, experience, intellect and knowledge of government, law and international affairs. Whether they are inclined towards leave, remain or any shade in between, they are more concerned and worried about our current state of uncertainty and national embarrassment than at any point in their collective memories.
Our dilemma was outlined in painful clarity by our ex-ambassador to the EU, Sir Ivan Rogers, in his speech at Liverpool University last month. I commend it to all of your Lordships with a taste for the kind of enervating entertainment offered by my noble friend Lord Lisvane to his maiden aunts. It is like a bucket of powerful paint stripper being applied to a canvas by a highly skilled diplomatic artist. What is depicted on the canvas is nearer to a Francis Bacon triptych than to “The Monarch of the Glen”. Sir Ivan depicts our fundamental misreading of how the EU operates and the weakness of our negotiating approach. He also inflicts richly deserved pain on so many of us:
“Both fervent leavers and fervent remainers as well as No 10 seem to me now to seek to delegitimise a priori every version of the world they don’t support”.
Where do we go from here, assuming, as seems very likely, that tomorrow’s vote in another place rejects the Prime Minister’s deal? Do we relinquish what vestiges of control we still possess, and accept the glorious defeat offered by departing without any deal at all? I have been doing my homework on the speakers in the two days of the debate last week; of the 19 Conservative Peers who spoke, 50% are in favour of no deal, and only 24% are in favour of the deal on offer. We live in strange times. Or do we—and I refer primarily to our elected representatives in the other place—wrest back control from the embarrassingly inept hands of Her Majesty’s Government and from their unworthy challenger, the equally inept and opaque Labour leadership?
Last Wednesday evening, my inner masochist turned on the television, and I found myself listening—much to my surprise—to a voice of sanity. It came from a fellow Cross-Bencher and an ex-Archbishop of Canterbury —my noble and right reverend friend Lord Williams of Oystermouth. Apart from being reminded that he possesses a set of eyebrows rivalled on the Cross Benches only by my noble friend Lord Lisvane, I was struck by the way he listened and thought carefully before any of his responses to a series of difficult questions about our current impasse. He gave no soundbites, no pre-rehearsed mantras, no entrenched and intractable points of view, just thoughtful, sensitively phrased and carefully considered responses that acknowledge the difficult decisions that we face.
I find myself agreeing with his reluctant but carefully thought through conclusion—that we should follow the advice of my noble friend Lord Armstrong of Ilminster last Thursday, and revoke and withdraw Article 50. We must acknowledge that swallowing our pride and admitting our failure to have defined, negotiated and then enacted a departure from the EU which is acceptable to a majority of our elected representatives requires us to return to the drawing board. No deal will not do. Extending Article 50 will not do. It will simply create yet another deadline, and allow us once again to kick the can temporarily down the road. No more.
Last month I reminded your Lordships of the surreal but uncomfortably pertinent Monty Python scene in which the characters debate their dislike of Rome—for which read the EU—while having to acknowledge a longer and longer list of the many benefits it has brought. Today I am reminded—with apologies to Scottish, Welsh and Irish noble Lords—of the agonised words of the character played by John Cleese in the film “A Fish Called Wanda”:
“Do you have any idea what it's like being English? Being so correct all the time, being so stifled by this dread of … doing the wrong thing … we're all terrified of embarrassment”.
We have embarrassed ourselves—and our many friends abroad—enough. Let us stop the clock, recover our mental faculties, nurse our emotional dissonance and seek a way forward that does not preclude any eventual outcome, and which prioritises understanding and acting quickly to remedy the deep economic and social divisions which the last two and a half years have laid bare. Let us cease and desist, and face up to our failures and responsibilities.
Baroness McIntosh of Pickering (Con)
I am delighted to follow the noble Lord, Lord Russell of Liverpool. I declare my interests as having practised European law in Brussels, having advised MEPs in the European Parliament and having been elected as an MEP for 10 years. I also served 18 years as a Member of Parliament, for five years of which I chaired the EFRA Committee.
Let us consider what people voted for in the referendum. Put most simply, they wanted to remain in the common market but not in a political union. They wanted to reduce immigration, and to take back control. Not all immigration is bad. We need to differentiate the needs for the economy, and to recognise the needs of health, social care, food, farming and the hospitality industry. We need to recognise that backbreaking work such as fruit picking, vegetable growing and that of the horticultural industry will no longer be done by students and people already living in this country. We need access to a reliable source of skilled and unskilled labour for farmers, who will otherwise be held back by the lack of access to a workforce.
Let us also look at what our trading relations will be post Brexit with both the EU and third countries. Trading in agricultural produce has huge implications for food and farming. We must legislate for the same high standards of health, welfare and hygiene on leaving the European Union as we currently enjoy. We must recognise the implications of chlorine-rinsed chicken and hormone-produced beef from the US, as well as substandard foods from Brazil and Argentina, which may negatively affect both consumers and home producers alike. There will be an enhanced role for the Food Standards Agency post Brexit, as it will have to check all imports from the EU as well as from third countries.
We must be very clear. Leaving with no deal means leaving on the World Trade Organization’s “most favoured nation” rules. We will have to treat all countries the same, so we can show no preferential treatment in exports or imports. However, “most favoured nation” means delivering equal treatment to all countries on the principle of non-discrimination; we cannot simply treat our erstwhile EU partners more favourably than any other trading nations in the circumstances of no deal. What a pity that the ardent proponents of no deal do not explain that in such stark terms, particularly the implications for the Irish border explained so eloquently and simply by my noble and learned friend Lord Mackay of Clashfern.
Potential tariffs on livestock could reach 40% on beef and lamb in particular. That is the greatest threat to hill farmers across the four nations of the United Kingdom. These farmers, whom I grew up with and then represented for a number of years, play a key role in feeding the nation and delivering the biodiversity of the countryside. They could never be replaced. The most drastic change we would see on leaving on World Trade Organization terms would be border checks on paperwork and the application of tariffs and non-tariff barriers. Let us consider nomenclatures for a moment: that means we have to identify every item in every individual product. We have to describe it and recognise and state the provenance and its content. Only then can we attach the appropriate tariff to the finished product.
The impact is not just of tariffs but of non-tariff barriers and other regulations, such as paperwork. I remember when the 120 pages that used to be issued in the European Union were replaced by one page with 120 boxes—what had actually changed? These checks could result in delays at borders, which could destroy perishable goods such as foodstuffs.
In considering the options before us today, in my view, the Prime Minister’s deal is preferable to crashing out without a deal, to a second referendum and to a general election, which would probably return a similar result to now, with no overall majority.
In the long term, we should seek the closest possible relationship with the EU that delivers frictionless trade, such as is enjoyed by countries who are members of the EEA and EFTA, leading to access to the single market but with the added benefits of a customs union to be negotiated through a separate protocol. In the short term, if the Prime Minister loses the vote on the deal, I see no alternative but to apply for a short pause in the Article 50 process. The elections to the European Parliament are an issue, but we could apply for observer status for those British MEPs, or at least some of them, currently serving there. They could then oversee the arrangements in the intervening months.
A second referendum holds no attraction for me. Why repeat the exercise when the last one was so divisive and inconclusive, and resulted in the murder of an MP, Jo Cox? The final say has to rest with the House of Commons and the democratically elected representatives of the people. The House of Commons must be allowed to vote on each of the options available; you simply cannot expect the electorate to enter into the minutiae of policy detail. What else would taking back control really mean, other than restoring parliamentary democracy?
Baroness Young of Old Scone (Lab)
My Lords, I want to make three points. First, the reality is that the Prime Minister’s deal is dead. The majority of MPs and probably the majority of your Lordships’ House, from all sides, simply do not support it. In the country, both leavers and remainers are quixotically united in rejecting it. The PM’s deal is definitely dead.
Secondly, there is no real mandate for leaving the European Union: 17 million people voted to leave, 16 million people voted to remain and 13 million people did not vote at all. So the “expressed will of the people”, as the Brexiteers like to call the outcome of the referendum, was the expressed will of only 37% of the electorate, and the polls tell us that these figures are shifting further in the direction of remain, particularly among young people eligible to vote for the first time—the very people who will inherit this mess.
It is not just a numbers game. All the political parties, with the exception of the Liberal Democrats, are radically split on the issue. Today in the House, even the Bishops have confessed—if that is what Bishops are allowed to do—that they are split. The normal machinery of politics simply does not work where Brexit is concerned. In any other walk of life, no sensible leader would attempt something as complex, heroic and contentious as unravelling 50 years of close partnership with no real mandate, no overwhelming support in the country and with their party split and unable to offer support. It simply would not happen.
Thirdly, if the PM’s deal has no support, no deal is even more catastrophic and must be absolutely ruled out. It would be equivalent to the closing moments of the road movie “Thelma & Louise”—one of my favourite films—when the two main characters, cornered by events and the law, drive spectacularly and with huge élan off a cliff. Driving off a cliff never has a good outcome, and let me give your Lordships just one example of the risks of a no-deal Brexit which has not been highlighted completely so far.
Brexit is a pivotal challenge for the environment. Some 80% of our current environment law stems from the EU and a no-deal Brexit would sweep away the current effective systems of enforcement of environmental law, and the existing rights of the public to environmental information, to public participation and to access to justice. With a no-deal Brexit there is a real risk that, as part of a desperate scramble to sign trade deals, the UK would be pressurised into a post-Brexit bonfire of environmental standards. As my noble friend Lord Whitty outlined, the Government have promised a whole framework of primary and secondary legislation for the environment, but none of it can come into place quickly, if at all, under a no-deal Brexit. This is simply one area that I have knowledge of where black holes will open up under no deal. We must avoid a no-deal Brexit at all costs.
I believe that your Lordships’ House must be the voice of sanity. We should vote vigorously against the Prime Minister’s deal and stop a no-deal Brexit. We must not be like Thelma and Louise, heading off a cliff, intoning, “It’s the will of the people”. I would go further than our Front Bench and ask the other place to revoke the Article 50 notification. Some say that resiling from a Brexit that looks highly unpalatable under closer examination, and which has in reality proven politically unachievable, would destroy faith in the political system. But there is no faith in the political system. Many of those who voted to leave did so because they felt politics had not delivered social and economic results for them, and because they had already lost faith in the political system. The time has come for men and women of good will across the parties to abandon this Brexit, which will impact particularly on those who are poorer and less able to cope, and focus on forging a national engagement and agreement to address the real issues of the day: future prosperity, economic and social inequalities, and the safeguarding of peace.
The Earl of Kinnoull (CB)
My Lords, it is a great pleasure to follow my titular neighbour, the noble Baroness, Lady Young of Old Scone.
As someone with no dietary requirements, on any cafe or restaurant menu there is invariably for me more than one right answer. On the Brexit menu before us today, however, there is less than one right answer. Thus I find myself in that same maze that my noble and learned friend Lord Hope of Craighead described in his speech of 5 December, which has been referred to many times in our five days of debate. Other than accepting the deal on offer, I agree with him that there are three ways out of the maze: no deal, go back to the people or seek to renegotiate. Having spent a career assessing risk, I naturally look at each of these three routes through those spectacles.
The EU Select Committee examined the no-deal option in exhaustive detail and published a report in December 2017. Our report was unanimous and concluded that the outlook following a no-deal Brexit was full of risk. I do not have time to develop the point as others have done in our five days of debate, but, to me, this route looks to represent an unacceptably high risk of significant economic damage, particularly for the trade-in-goods part of our economy. In saying that, I accept there is a line of logic that suggests that mini deals would be done in a no-deal situation to ameliorate matters. That can, and does, reduce some risk, and I feel I have taken account of it in reaching my conclusions.
The second way out of the maze is to go back to the people. As a Scot, I am a veteran of two recent referenda. They are deeply divisive of our community and fraught with bad behaviour on the part of the campaigns themselves and their supporters too. In the Scottish referendum, there was much low-level criminal damage, intimidation and dreadful cyberactivity, to finger only some of the unsavoury elements. In the EU referendum, feelings also ran very high, with many families and friendships riven.
In his speech on 5 December, the most reverend Primate talked of the importance of healing, and last week spoke of the need for reconciliation. In both instances the whole House agreed with him. I fear that another referendum stands a substantial chance of seeing considerable unrest and the opening and reopening of many awful wounds—Anna Soubry MP got a personal gypsy’s warning of this, which reached the front page of the Times last week. In any event, I agree with the many noble Lords who have suggested that such a referendum is unlikely to settle the issue permanently.
The third way out of the maze is to seek to renegotiate. At the start of November, the Select Committee visited Brussels for two days, immediately before the announcement of the potential deal. As ever, we met substantially all the various interlocutors whom we had got to know through the process. I had the strong impression that both sides were at their limits and that the appetite for further negotiations was very low. In addition, the apparatus that the EU negotiates through is very clunky. Behind Monsieur Barnier is a committee structure which involves all the EU 27. We sat through a lengthy meeting with that committee’s secretariat and learned through practical examples of the great difficulties and sheer length of time it takes to achieve consensus on even small issues among the EU 27. We are, therefore, out of both negotiating time and negotiating appetite. Accordingly, there is a strong likelihood that an attempt at a substantial renegotiation will make little, if any, significant change and push us towards no deal.
However, during that same Brussels trip I was much encouraged by our lengthy visit to the Canadian embassy. They told us how they were already making small incremental and mutually beneficial changes to their brand new treaty agreed only in 2017. We had a similar report from a very senior Swiss official at an informal meeting in London the following week. Both commented that concluding a treaty was not the end of the matter but the start of a conversation. I fear the backstop less than many because of those two sessions. Thus, at the start of December I felt that the correct route was to accept this pretty unpalatable deal. It represented the lowest risk to the UK, our fellow citizens’ lives and jobs and the 3.5 million EU citizens living among us. But the Prime Minister seems likely to face defeat tomorrow so, accordingly, I will comment briefly on how one might conduct a renegotiation which stood some chance of succeeding.
It seemed to me in early December, and still today, that there would have to be a strong body of agreement among MPs on the ask—and that that ask must be simple. In cricket, or at least junior cricket, the wicket-keeper is covered by the backstop. The backstop is covered by a longstop, the date after which the backstop would fall. I am sure a winning, simple ask might be found in that thought. In this, I am encouraging the Prime Minister to have another go following today’s exchange of letters. I would also say, just out of interest, that most insurance policies that I have ever been involved in have had a cancellation provision.
On a serious point, I would submit to the EU that in a no-deal situation the economy of the island of Ireland would have a very high risk of significant damage; that would itself threaten the Good Friday arrangements; and that, accordingly, such a longstop was thus more consistent with the Good Friday arrangements. Going into any negotiation, however, is still jettisoning the bird in the hand, and from the menu with less than one right answer I think we should take this deal.
Lord Lilley (Con)
My Lords, it is a great pleasure to follow a thoughtful speech from the noble Earl.
The Prime Minister claims there is no alternative to her deal—but there is. It is not mine, not Jeremy Corbyn’s—whatever that is—but Donald Tusk’s Canada-style free trade deal he offered in March and repeated in October. As he said, that is the only deal compatible with leaving the customs union and single market, as promised in the referendum and in the Conservative manifesto. It must cover the whole UK, which means replacing the backstop by a commitment by Ireland, the EU and the UK that we will all retain an invisible Irish border, as we have all pledged to do if there is no withdrawal agreement. Under Article 24 of the WTO, if we agree such a deal in principle we can continue to trade with zero tariffs after 29 March while fleshing out the details.
To get such an agreement we must be ready, and be seen to be ready by the EU, to leave on WTO terms. As Trade and Industry Secretary, I helped negotiate the WTO to provide a safe haven for trade and I also implemented the single market programme. I predicted that both would boost trade—wrongly in the case of the single market, to which our exports have grown by a miserable 18% over 25 years, but rightly for the WTO as our exports to the rest of the world have grown by 72%.
If we leave on WTO terms there would be four obvious pluses. First, far from crashing out, we will be cashing in, as my noble friend Lord Hamilton, predicted I would say, and we will keep £39 billion. Your Lordships’ own committee concluded that:
“Article 50 allows the UK to leave the EU without being liable for outstanding financial obligations”.
To show good faith, we should confidently submit the issue to international arbitration. Secondly, it would end corrosive uncertainty—economic and political—which would continue for over two more years under the PM’s deal. Thirdly, both sides will have to solve the Irish border issue by administrative measures without border posts, as they have promised if there is no deal. Mr Varadkar has said:
“In … a no deal scenario … we won’t be installing a border between Northern Ireland and Ireland, and everyone knows that”.
Mr Junker reassured the Irish Parliament that:
“If negotiations fail … the European Union will not impose a border, customs posts or any other kind of infrastructure on the frontier”.
And Britain has said it will not,
“require any infrastructure at the border … under any circumstances”.
We already tackle smuggling of tobacco, alcohol, red diesel and drugs without border checks, so the UK can certainly stop illicit trade in Dyson vacuum cleaners if our regulations deviate from those of the EU. Finally, once we all resolve the Irish border issue administratively, we can take up Tusk’s offer of a free trade deal for the whole UK.
Not one of the noble Lords who has railed against no deal in these debates has addressed these benefits of a WTO Brexit, even to refute them. More remarkable, only two or three noble Lords have spelled out specific concerns about a WTO Brexit. The others simply demonised it with a lexicon of lurid adjectives which were last deployed to warn against leaving the ERM, not joining the euro or the millennium bug.
Let me address the specific concerns that a couple of noble Lords have raised. The first was given by the noble Baroness, Lady Smith of Basildon, opening the debate in December, who said, “Planes will be grounded”. She was apparently unaware that on 13 November the European Union Commission had already promised legislation allowing air carriers from the UK to fly over, to and from the EU provided the UK reciprocated. The Commission also announced that hauliers will continue to get licences, that Airbus can export its wings, that the UK will be swiftly listed as a safe country to allow entry of live animals and animal products from the UK, and more.
The other concrete concern came from the most reverend Primate the Archbishop of Canterbury. While temporal Lords have been demonising a WTO Brexit with odium theologicum, it took a Lord spiritual to bring us down to earth with the request for proof that it would not have a significant negative effect on people in his diocese, such as when Operation Stack has been in force. Of course it is impossible to prove a negative or that Operation Stack will never be necessary regardless of Brexit, as it has been invoked on 211 days over the past 18 years, although without any archiepiscopal moral censure of those responsible.
I can explain why Brexit should not add significantly to such delays. First, HMRC expects roughly the same number of physical checks of vehicles at Dover as at present because its checks are based on risk, notably of smuggling tobacco, drugs and illegal immigrants, none of which will increase because of Brexit. Moreover, HMRC promises to prioritise flow over compliance. That means waving lorries through even if their declarations are incomplete.
The concern in the past has been not about Dover but about Calais. However, the good news, brought to the most reverend Primate’s attention by my noble friend Lord Forsyth, is that the chairman of Calais ports says that they too will have no more checks than at present. They are determined and confident that traffic will flow freely—not to be nice to Britain but to avoid losing trade to Zeebrugge, Rotterdam and Antwerp. They are installing three extra lorry lanes, an inspection post for animals away from the port and a scanner for trains moving at 30 kilometres an hour. Monsieur Puissesseau was indignant that the British Government were—quite unnecessarily in his view—hiring ferries to take trade away from his port to other ports.
Problems one prepares for rarely happen, as we discovered with the millennium bug. The Government are now being rather coy about how advanced their preparations are for leaving on WTO terms because they want to frighten MPs into voting for their deal, but I am confident that if we leave on WTO terms on 29 March events will be far closer to a damp squib than the apocalypse. That may disappoint some fanatical remainers in this House, but they will get over it.
Lord Soley (Lab)
My Lords, in this long-running crisis last week Mr Speaker Bercow made a ruling in the House of Commons which makes an already unpredictable situation even more unpredictable. The long-run consequences of that ruling have yet to play out because I cannot see Parliament giving back the powers it has just gained, and we might well see more cross-party deals if the negotiations on the political declaration continue—as I think they will, and I will say more about that in a moment—over the next few years. This will not be quick.
Before I get on to that, I want to say that, unlike most of my colleagues, I am strongly opposed to another referendum. Another referendum would be a failure, and as a desperation measure it would still probably not solve the problem. I am against another referendum because it would probably produce a very similar result to the one we have already had. This needs to be said very often in this place because the majority of people here voted remain and strongly support it. I voted remain. I think it would have been better if we had stayed in but, as the noble Lord, Lord Skidelsky, said, it is a profoundly serious mistake to assume that the other side of that argument is a weak argument. There are a lot of people on the Brexit side of the argument who feel passionately that we must be out of the European Union. They do not feel that just because of immigration or bureaucrats or whatever; they feel it because there has been a long-running belief in Britain that we should join an economic market, not a political one.
This goes back to the 1957 treaty of Rome with ever-closer union. The British people did not see a political need for that, but the continental countries did. Why? It was because in the past couple of hundred years all of them without exception had had their borders changed by force and had been defeated and occupied. They see the EU as a peacekeeping mechanism, and they are right. Britain does not see it that way. The last time we had a war on our soil was 380 years ago, and it was a civil war—it worries me to say that perhaps we are running up to another one right now on Brexit. Do not treat the continental countries’ argument as trivial and do not think they will change their view just because the economics of this look bad. For them, the political side is very important. The majority of British people saw themselves joining an economic supermarket not a superstate, and that makes a fundamental difference.
If there were a similar result as before, we would be no better off than we are now. If the result were marginally the other way for remain—this point has already been made, so I need not labour it—there would be more people coming back for yet another referendum. Just look at the SNP’s arguments on this: it always wants another referendum. It would have one a week until it won, and that will happen with both sides of the Brexit argument if we are not careful. That is why I see another referendum as a last resort. It may have to happen if the House of Commons cannot get on top of this and sort out an alternative. I would also be worried about what the question or questions would be and how quickly it could be got through the House of Commons and how quickly it could get the approval of the Electoral Commission, which has to agree to it. At the end of the day, Burke was right. Britain works best with representative democracy. Do not have referendums. One thing that got us into this mess was a referendum when the Prime Minister of the day had not worked out what he would do if he did not get the result that he wanted.
That brings me to the major point I want to make, which is about the political declaration. I see it as the long-term way forward. As many people have said, the political declaration is fairly woolly. Of course it is woolly. It should have been produced about two months after the referendum. Had it been produced just after the referendum, it would have been a negotiated document, and we would be in a rather better position than we are in at the moment. If we can get to a situation where we have a deal with the European Union—and I do not know whether we can and make no predictions about it as the crisis is too serious and unpredictable—then we can use the political declaration to build up that ever-closer relationship which we need. As the noble Lord, Lord Skidelsky, said in a speech I agreed very largely with, Europe not just is but needs to be travelling at more than one speed so that those who are going for ever-closer union continue to do so.
I would like to see the development of a single state on the European continent, however defined, federal or whatever. It is necessary, not least for defence and foreign policy issues, where it is daft that 450 million well-educated people in the modern economies of Europe cannot stand up to 150 people in the corrupt and despotic regime in Russia without the help of the United States, which will not be there for ever. Although I do not want to see the end of NATO or the EU, bear in mind that what is happening in Europe is long term. We have to be part of it. We cannot be right out of it, but right now we cannot be right in it. Whatever happens in the House of Commons—and it has to decide, not us—we should use the political declaration to move things forward.
Finally, I was delighted to see, in that document and in the agreement, recognition that we need close development between the two Parliaments. That is a proposal I made in this House about two years ago, just after the referendum. If the Minister will stand up and say that we will do that and will get on with it as soon as we have the immediate situation under control, I will buy him a drink.
Lord Stern of Brentford (CB)
My Lords, I have spoken before in this House on the economics of Brexit, but in many ways the political arguments are still more important. My father, a refugee from Hitler’s Germany, experienced directly—like so many others of his generation—the consequences of extremism and conflict in Europe. For all its faults, the EU has brought Europe together and made both Europe and the world more secure.
Internationally, our country has already suffered serious reputational damage from our Brexit convolutions. There is now less confidence in the UK as a rational, reliable and serious player standing for enduring values in the world. This was made crystal clear by the distinguished contributors from five major countries in Neil MacGregor’s outstanding Radio 4 programmes “As Others See Us”, and it is the experience of so many of us who work internationally.
Brexit, particularly a no-deal Brexit, will weaken the shared European voice in an increasingly challenging world at a time when international collaboration, democracy and human rights are under increasing threat. I have seen at first hand, in climate negotiations on the 2015 Paris agreement and beyond, how effective the UK within the EU can be on the international stage.
Brexit, particularly a no-deal Brexit, would damage our universities and research because we would lose some of the outstanding staff and students who come to us from the EU. They, and those from outside the EU, see growing hostility to perceived outsiders and worry about the kind of society we may become. Those of us who work in universities are seeing this now. We could lose access to crucial research funding and vital research collaborations. All this would put at risk one of our most precious assets in a competitive world where skills, innovation and research will become ever more important.
We also risk deep damage to other institutions right across British life, including our National Health Service, which relies so much on European staff over the whole range of its activities. The head of the Met has emphasised strongly the risks to our security from no deal.
On the economics, while I am an economics professor at the LSE and president of the Royal Economic Society, I stress that I speak personally, not on behalf of those institutions. I shall focus on the medium term. The markets have spoken: since the referendum in 2016, the exchange rate has been around 15% lower, indicative of a perceived weakening of medium-term prosperity. Business has described no deal as a wrecking ball. Serious economic modelling whether in international institutions such as the IMF and OECD, our own Treasury, the CBI or in research institutions and universities, has indicated medium-term losses—that is 10 to 15 years from now—from a no-deal Brexit of 5% to 8% or more of GDP. Of course, we cannot predict with certainty, but the evidence points overwhelmingly one way.
The losses arise in large measure from the new barriers—both non-tariff and tariff—erected by such a Brexit to our trade and investment with our major partner. The losses from the barriers embedded in the PM’s proposition would also be large, albeit somewhat less. Let us be clear: the losses are likely to be most severe for the poorest people.
Markets, business, economic analysis and, common sense all point the same way. A no-deal Brexit produces great harm in the future and still more harm for decades to come. It cannot be a serious option. The best we can say about the PM’s proposition is that the damage is a bit less.
We are British, of course, and we would, I hope, keep calm and carry on, and make the best of it. But what is the point of self-harm? Some appear to think that the substantial short-term damages from no deal would just be uncomfortable initial steps on the road to some sunny uplands. It is remarkable that hardly any credible analysis is offered for such a story. It is just bluster, embellished by the odd confused number or modelled argument.
For example, we are told that £10 billion or so in saved net EU contributions would cover any costs of a no-deal Brexit. That is nonsense, when potential medium-term costs of 5% plus of GDP could be £100 billion to £150 billion a year or more. We are told, probably correctly, that other markets will grow faster than the EU. However, there is little evidence that trade with those markets would be enhanced by being outside the EU. Indeed, investing in and trading with the UK is much more attractive if we are inside the EU and a gateway to its markets.
A rational, analytical assessment of the evidence leads inexorably to these conclusions: no deal is deeply damaging; the Prime Minister’s proposition would diminish us economically, politically, socially and internationally; both are greatly inferior to what we have within the EU. Given that the people voted in a referendum in 2016, given that we now have, as we did not have then, a specific proposition, and given that we now know so much more, we must, as a matter of responsible, open and informed democracy give the opportunity to the people of the UK to vote on the Government’s deal versus staying in the EU.
Viscount Ridley (Con)
My Lords, I shall be brief because I spoke in December. I put my name down in this case to speak if something came up, and a couple of things have come up. The first is a small point: in his opening speech, the Minister answered a lot of points made in December, but I do not think he answered mine. I asked: which of our preparations for leaving on WTO terms need EU co-operation at this stage and is that co-operation forthcoming?
Secondly, I was in the Chamber last Wednesday when the noble Lord, Lord Kerslake, said:
“I do not buy the apocalyptic predictions”.—[Official Report, 9/1/19; col. 2270.]
A little before that, the noble Lord, Lord Steel of Aikwood, said:
“I do not for one moment believe the scaremongers”.—[Official Report, 9/1/19; col. 249.]
I thought, “Hurrah, at last, agreement. People are starting to realise that these scare stories about no deal are hugely exaggerated”. But no, they were talking about different scare stories: those about the risk of delaying Article 50 and holding a second referendum—the uncertainty that would persist; the anger that would erupt; the civil unrest; the delayed business investment, referred to today by the noble Lord, Lord Curry; the risk to democracy itself; and, above all, the risk of a Marxist Government.
The remainers who dominate this Chamber do not believe those scare stories but they believe, magnify and exaggerate every scare story about leaving with no withdrawal agreement and going on to WTO terms. No mad fear about Mars bars and insulin, water and sandwiches is too absurd to repeat. Why this double standard about risks in the future?
In one of the most colourful images used in the debate so far, my friend the noble Lord, Lord Hennessy, described people like me as being so insouciant that even if we were told that the four horsemen of the apocalypse had asked for landing rights at Heathrow, we would not be worried. I took the noble Lord, Lord Hennessy, aside an hour or so ago and said, “For a man of your erudition, Peter, are you unaware that the four horsemen of the apocalypse are entirely fictional characters?”. They are figments of the imagination of St John the Evangelist, who was having a psychedelic dream at the time, as far as we can tell. I am looking to the Bishops’ Bench for confirmation of what exactly happened. I am blessed. Just as many of the other fears are fictional.
We face a balance of risks and opportunities whichever way we go. I judge the risks to this country of delaying Brexit—the uncertainty, the anger, the disillusionment, the polarisation, the constitutional crisis—to be greater than the risks of leaving with no withdrawal agreement in place and arranging for WTO terms. I do so mainly because we can mitigate the latter risks with preparation, as we are doing. We can listen to people such as Sir Rocco Forte, my noble friend Lord Bamford, the head of HMRC, the chief executive of Calais, as my noble friend Lord Lilley mentioned, whereas we will struggle to mitigate the risks of the other course of action.
I venture to suggest that what most people in this Chamber—the remainers—are really scared about is that no deal might be a damp squib. It might all happen with only minor problems. I think that is really what keeps them awake at night.
Lord Wrigglesworth (LD)
My Lords, I have worked in the north-east with the noble Viscount and his father over many decades and it is a pleasure to follow him. However, I fear that on this issue we are on opposite sides of the fence. Maybe, if we get together some time in the future, we will find a way of reconciling our views, but I fear not.
I want to talk a little about the referendum, because the one way of bringing reconciliation after a dispute is for the victor to be generous in attitude to those who have been defeated. I do not think the inflammatory and gross exaggerations about the outcome of the election by some of the Brexiteers have in any way helped to bring about that reconciliation. We have heard a great deal about the mandate from the 17.4 million people in the country who voted in favour of Brexit. We have heard very little about the 16.1 million who voted to stay. That amounts to 34.7% of the electorate.
I remember in the other place, back in 1979, we had great debates over the referendum on Scottish devolution. George Cunningham proposed an amendment that there should be a threshold of 40% of the electorate voting in favour of the legislation for it to go through. Of course, it did not reach the 40%—a very modest threshold—needed for that legislation to go ahead. In my experience, most clubs, institutions, businesses and all types of organisation have a threshold above 50% if they want to change the constitution or make an amendment. It is not 50% plus one, it is anything up to 75%, or two-thirds, before the vote becomes legitimate.
The language that people, including the Prime Minister, have used—talking about catastrophic betrayal and people being let down, with Members of Parliament saying that they have been instructed by this referendum when it has been so close and that they have been ordered what to do—really has not helped. Do MPs not have minds or judgment? Are they just going to accept the outcome of such a narrowly based referendum? If there is to be reconciliation, I hope some Brexiteers will start paying attention to the 16 million who voted to remain and seek to reconcile the differences between the people. The 40% threshold would, in effect, have ruled out the result of this referendum and I believe that we should move towards another vote on this deal.
Other dangerous myths and distortions have been introduced into this whole debate and we have heard some of them in the contributions in this House. The whole business of Project Fear and attacks on experts is deeply damaging to our political debate. I was very interested to see in last week’s Sunday Times that David Smith, the economics editor, had analysed different forecasts from the experts. Almost at the top of the list came the Office for Budget Responsibility, which got 10 out of 10 on all the points that it had forecast for 2018. Second on the list came the much maligned—from the Brexit side—CBI, which got nine out of 10. Just out of interest, who came bottom on the list? It was one Patrick Minford, of the Liverpool Research Group and founder member of Economists for Free Trade, who got three out of 10 for his forecasts for 2018 and had a similar result in 2017. Many things have been said but this attack on policy by evidence-based activity is deeply damaging to British politics and government, and I hope the attacks on experts will cease.
Another issue—which I regard as largely mythological —is covered by Clare Foges in today’s Times. She talks about the left behind and refutes the suggestion that they voted in protest against the metropolitan elite. It is very amusing that the metropolitan elite making this accusation have been educated at Eton, Dulwich College and other such places, yet they have the brass face to attack Members of the other House and this place for being elitist.
The fact is that over decades Governments of all parties have poured in money through development corporations. The noble Lord, Lord Heseltine, has probably done more than any other person in this country to try to help the areas hit by industrial change and the wind-down of the old industries, not just in Liverpool but everywhere in the country. It is simply not true to suggest that people have voted against the EU just because of 30, 40 or 50 years of decline in those areas; the issue is much more sophisticated and subtle than that. A great deal has been done and they should not be described as the left behind.
The noble Lords, Lord Skidelsky and Lord Soley, referred to the powerful arguments that Brexiteers have mounted. Some of us, including me and many on these Benches, take the view that this is not just about the cost of customs. We have an internationalist view of the world, in which we believe that co-operation between countries is the best way to solve the problems facing us, and such co-operation is needed now probably more than it ever has been. That being the case, we believe in co-operating with others through institutions such as the EU. That is the basis of our commitment to the EU. It is not to do with the price of exports and the market; it is about people working together.
Baroness Barran (Con)
I wonder whether the noble Lord was thinking of bringing his remarks to a close.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I believe that in 2016 the people of the United Kingdom gave a clear instruction to their elected representatives that the UK was to leave the EU. Under that democratic mandate, our Government entered into negotiations with Europe, seeking an honourable settlement that would action the will of the people. However, we know that since that time there have been those who have sought to deliberately thwart the will of the electorate—much to the delight of those in Europe, who have for years reaped the benefit of the billions that have flowed from the British Exchequer.
A few weeks ago, we anticipated that we had arrived at decision time regarding Brexit, but in the middle of our previous debate the Prime Minister pulled the vote, knowing that Parliament would not accept her deeply flawed deal. From the beginning, the DUP’s position has been consistently stated, publically and privately. When we entered into the confidence and supply arrangement with the Government, it was known that the DUP desired a sensible exit from the EU that strengthened the union and benefited all parts of the United Kingdom. Our genuine endeavours have always been to secure a workable withdrawal agreement with the European Union that would provide security and stability for all—but we made it abundantly clear that we would not agree to a new border in the Irish Sea that would undermine the integrity of the United Kingdom and threaten our precious union. Indeed, that was the position of the Prime Minister as well at the time.
We insisted that no new regulatory barriers would develop between Northern Ireland and the rest of the UK and that Northern Ireland business must enjoy the same unfettered access to the whole of the UK internal market. Although the Prime Minister and her negotiating team were aware of those demands, the Government allowed themselves to be pushed around by Dublin and the rest of Europe, and they are presenting a withdrawal agreement that would place a regulatory border between Northern Ireland and Great Britain, contrary to the explicit pledges given by our Prime Minister.
The backstop arrangement that the EU has demanded leaves the entire UK trapped until the EU decides to release it. It is claimed that the backstop is necessary to prevent the erection of a so-called—fictional, we now find—hard border. However, in reality, the notion of a hard border was only a negotiating ploy on the part of the EU to secure its aims in the negotiations, encouraged and at the behest of the Irish Republic.
Now we are being inundated with letters and assurances that Europe hopes will help the Prime Minister get her flawed deal over the line. If passed by Parliament, the withdrawal agreement becomes a legally binding international treaty. Therefore, only changes to the legally binding treaty can deliver the assurances that any true unionist could accept. From our experiences with successive Governments, we know only too well that letters of comfort or promises are often meaningless, because in effect an international treaty supersedes and overrides any contrary domestic legal provision. Sadly, promises and assurances can be swept away at the whim of any Prime Minister to suit the political survival of the Government in office at the time. So I make it clear: the Democratic Unionist Party will not support an internationally legally binding withdrawal agreement that does not protect the economic and constitutional integrity of the United Kingdom.
The DUP has been challenged that we do not represent the views of the electorate of Northern Ireland. Let me face this. We are often reminded that 56% of the electorate in Northern Ireland voted remain and that 44% voted to leave—but let us scrutinise those figures. In actual fact, of that 56%, we find that 88% of all nationalists, many of whom have for years worked for the destruction of the United Kingdom, voted to remain, while 66% of unionists voted in the referendum to leave the EU.
Of course, the question asked was whether the UK as a whole should remain in or leave the EU, but in this agreement Northern Ireland is to be economically and constitutionally separated from the rest of the United Kingdom and trapped within the EU while the rest of the UK has the possibility of leaving. No unionist worthy of the name could accept such a proposal, and certainly my colleagues in the DUP will, without apology, vote against it.
On 9 January the Government published so-called assurances, but paragraph 44 says:
“This paper has focused particularly on the role that the Northern Ireland institutions will play in any scenario in which the backstop would take effect”.
They do not seem to get it. We reject the backstop. Those assurances merely allow for consultation, and that consultation with the Northern Ireland Assembly will have no ultimate bearing on the decision taken by Parliament because paragraph 17 says Parliament will have a decisive role in the decision.
After the letters come the threats. The Secretary of State raised the threat of a possible border poll and the UK Government’s commitment to peace funding after 2020 now seems tied, by Karen Bradley, to ratification of the withdrawal agreement. The resorting of the Secretary of State to such scaremongering and threats is to be deplored and proves only how threadbare are the arguments in favour of the Prime Minister and her deal. Instead of the cast-iron guarantees previously promised when the vote was delayed in December, we have the wheels of Project Fear furiously turning.
The mandate from the electorate was clear: the UK leaves the EU. Leave means leave. We do not need a dictionary to help us to understand what that means. Let us honour our moral obligation and leave on 29 March. We joined the EEC together and, as one, we should leave the EU together.
Baroness Stroud (Con)
My Lords, I thank the Minister for enabling this debate and for his careful consideration of all the contributions from both sides of this House. We know that emotions run deep and that, with divisions in every party clearly manifesting themselves, this has ceased to be a party-aligned issue, but I hope to add my voice to those who are conscious of the enormity of this historic moment.
Some have argued that the future holds nothing but economic ruin, some fear an economic flatlining or stagnation, and others still believe in the sunlit uplands of global trade if only we could get to the other side of Brexit. The reality, if we are honest, is that none of us has walked this way before and no one really knows what will happen when we leave the European Union. But most of us know this is a path we need to walk in some way, shape or form and that all our debates are focused on finding the best way possible that delivers continued social and economic prosperity for a nation with such a remarkable history.
The vote to leave the European Union was a bold, surprising and unequivocal statement by millions of people who wanted to change the political, economic, and social status quo. It was a moment in time, as far as they were concerned, a rational choice, when those who had not felt heard by the establishment, or by many of us even in this Chamber, expressed their desire to take back control: control of their wages, public services and borders and of this nation’s sovereignty. I am afraid that I have to disagree with the noble Lord, Lord Wrigglesworth.
The events of 23 June 2016 should have kick-started a national debate aimed at understanding and reconciling the deep divides surfaced by the referendum in our nation. How can it be that two halves of the UK see the same country so completely differently? This should have mattered to us. What can actually be done about it? This should have been our overwhelming focus and priority. Instead the debate that was kick-started has tragically driven divisions even deeper and left many feeling that the establishment has continued not to hear them.
For many, the debates we have here about all that could be lost hold little or no sway. As far as they are concerned, much has already been lost. It is important that we take time to hear and understand these perspectives and that our withdrawal agreement honours their concerns—about their wages, the security of their homes and access to public services. This was not a minority group; it was 52% of those who voted and we have to hear their concerns. The withdrawal agreement needs to be right for the whole country: honouring the concerns of those who voted leave and those who voted remain, and delivering a strong foundation for economic and social prosperity for future generations. The Prime Minister’s withdrawal agreement addresses a number of the structural and economic issues raised by the vote. For these reasons it achieves some of the Brexit objectives, so I will support it, although I suspect that a final step may still be needed if it is to pass in the other place.
But there are issues that the withdrawal agreement cannot and does not address; there is a deeper malaise to be treated, deeply linked to job insecurity, and access to housing, education and healthcare. If we are truly to change how people’s lives feel to them at present, while leaving the EU is a critical first step, the vote must also trigger wider reform, a better and clearer vision of social justice and significantly greater social cohesion. These issues should be as strongly and as passionately debated by Members of this House as any withdrawal agreement.
In light of the Brexit vote, we have a once-in-a-lifetime chance to reshape public policy so that it genuinely helps those who feel they have little stake in society, and to respond directly to the concerns that surfaced in the referendum. In years to come the EU referendum will be seen as a turning point in Britain’s long history. Depending on what we do next, it could simply be remembered as the moment we finally agree a withdrawal agreement and progress towards exiting the European Union: a moment of political process, a technical adjustment to the UK’s relationship with Europe. If that is the case, we will have failed. Instead, we must listen with compassion and humility to those who desperately wish for another way. As political leaders, our duty is to provide the wisdom and courage required to move towards a new settlement for Britain, not to keep alive old and current divides; there is then the hope of prosperity and social justice for all, and of a United Kingdom.
Lord Liddle (Lab)
My Lords, we are living through a political crisis without equal in our post-war history. Labour’s Front Bench in the Commons has to play a decisive role in the outcome. Without its support it will be difficult for any option to carry. Yet its present stance comes across as a supine unwillingness to declare its hand. This will be the focus of my remarks.
Jeremy Corbyn wants a general election but for weeks we have been waiting for the Motion of no confidence. For him, such an election would be as much about issues of class and inequality as it would be about Brexit. He aims to unite working people on a mandate to negotiate a “jobs-first” withdrawal. If his effort to force an election fails, he would still prefer a negotiated Brexit to a people’s vote. A Labour Government could of course abandon the red lines that have so unnecessarily and counterproductively constrained the Prime Minister. Listening to Sir Keir Starmer, with his unequivocal commitment to a customs union and full participation in the single market, might suggest that such a decisive shift would be entirely realistic. However, Mr Corbyn and those closest to him in his office favour a more qualified policy. In their customs union, Britain and the EU would have an equal say on future trade deals. For them, the single market avoids border barriers, except that they want to break free of the competition and the state aid rules which are fundamental to the whole concept of a level playing field.
There would be no willingness in Brussels to entertain what for the EU would be an extraordinary set of propositions: to give a non-member state a veto over the Union’s autonomous trade policy and to license Britain to act as a competitor rogue state. In practice there will be three and a half alternatives to no deal after tomorrow’s Commons vote. The half-choice is full membership of the customs union; it is only a half-choice, for without alignment of single market regulations there will need to be a hard border in Northern lreland. The WTO rules will require that. The customs union therefore requires a Northern Ireland backstop of some kind to be permanent. Norway, or Common Market 2.0 as Nick Boles now calls it, is highly problematic. It requires a level of trust on the EU’s part that Britain has squandered in the last two years. The EU fears that Britain would not behave responsibly like Norway but, as a much larger competitor outside the EU, would constantly push against the limits and loopholes of the EEA rule book. Domestically, for how long could a great nation such as ours live happily as a rule-taker?
The third possibility is that, without decisive progress towards a comprehensive alternative, Mrs May’s deal staggers on, on life support, in the hope that someday, sufficient Labour Back-Benchers from strongly leave constituencies, in fear and fright of no deal, will eventually back her deal as the only option available. This would be a disaster for my party. Whole swathes of progressive opinion would never forgive us for the betrayal of their European commitment. To avoid this, Labour must move decisively to back a people’s vote. Some argue that Labour cannot be seen to betray Labour supporters who voted leave. Frankly, it is the leadership of the leave campaign that has betrayed those voters, with its extravagant promises and lies. Support for remain has strengthened significantly among 2017 Labour voters since the referendum.
In my view—I am sorry to say this—the obstacle to a shift in Labour policy is a different one. The leadership group around Mr Corbyn has an outdated view of the EU as an instrument of global capitalism and United States imperialism. Their political economy is stuck in a 1970s ambition for “socialism in one country”. Unfortunately, I was alive then. It did not work then and it certainly will not work half a century later.
The EU has many faults and needs much reform. But uniquely in the world, and however imperfectly, it offers a means of structured co-operation between countries that can be used to promote progressive values: to promote human rights and democracy; to work for peace; to advance economic justice for poorer nations; to tackle climate change; to not just manage migration but address the injustices that drive its fundamental causes; to ensure that big corporations pay their fair share of taxes; to bring the digital monopolists to heel; and to prevent a race to the bottom in workers’ rights and consumer and environmental standards, which is crucial.
There is a way forward. Labour must back a people’s vote now and must listen to the overwhelming view of Labour members and supporters. We must gain the courage to come out for remain.
Lord Inglewood (Non-Afl)
My Lords, as ever, it is a pleasure to follow my Cumbrian neighbour and friend, the noble Lord, Lord Liddle, even though I do not imagine he would necessarily describe me as progressive.
The first time I heard the phrase “Brexit means Brexit”, I thought it was a snappy, purposive soundbite, but I have now come to the conclusion that it is probably at the heart of our nation’s present discontent. As others have said, the politics of the referendum nearly three years ago was about the kind of United Kingdom we wanted for the next generation, or possibly even longer. Those who wanted change went through the portal called Brexit, and beyond was the brave new world. Not merely were there two main campaigning organisations, with rather different emphases, there were in fact at least two somewhat hallucinogenic visions of Shangri-La on offer, and they are mutually incompatible. As we can see now, the real question facing this country is: do we want to remain in the European solar system, if I can put it that way, or do we wish to board starship “Enterprise” for a different galaxy? These are mutually incompatible destinations and they cannot be triangulated, because the best way to bring about one interferes with effectively delivering the other.
As long as Brexit was not precisely and properly defined, the Government and supporters of leave could more or less coalesce. However, it is now clear that different members of the Government, like voters in general, have fundamentally different views of what they were voting for. Because of this internal contradiction, there can be no agreement on which of the outcomes the referendum delivered. That is the crisis of now. The reality is that the Brexit of the referendum is an impossibility, in exactly the same way as William Pitt the Elder, Earl of Chatham, explained to your Lordships about 250 years ago, telling us, rightly, that it was impossible to conquer America. Since it is an impossibility, it cannot be mandated or brought into being, and so the Government cannot deliver it. Let us be clear: that is not the Government’s fault. The Prime Minister has clearly striven mightily, albeit changing her own personal picture of Brexit as she goes, but what is on offer in her negotiated deal is not the Brexit of the referendum; it is a changeling.
Based on my own experience and expertise—I draw attention to my entry in the register—I am sure she is right that her deal is better than no deal. However, I do not think either deal is good enough, or delivers the referendum; as I said, this is an impossibility. Each will be a precursor to years and years of acrimonious wrangling. I do not think anybody wants that, but we need to be clear that that is the likely eventuality. Furthermore, I cannot see either of these two options delivering an especially deep or special relationship.
The problem is that those who voted remain feel cheated by the shenanigans and cheating that surrounded the referendum, and those who voted leave are worried they will be cheated out of the outcome, either by remainers or by advocates of a version of Brexit incompatible with their own. It is a terrible mess. Just as politics is the art of the possible, so Brexit has become the crisis of the impossible. It is not a question of taking back control; it is a matter of getting it under control. If nobody else can do it, Parliament— that is to say, the other place and your Lordships’ House together—must do it, because we cannot go on like this.
Lord Balfe (Con)
My Lords, it is always a pleasure to follow my good friend the noble Lord, Lord Inglewood. I would like to begin by drawing attention to my entries in the register and reminding Members, if they needed reminding, that I am a strong advocate of remaining fully involved in the EU.
During this debate, a number of people have said that this is a great turning point, as though this has never happened before. I will start with some history, and draw attention to the fact that it has happened before. In the early 1930s, we had the Peace Ballot. That destroyed politics in Britain, right up to the Second World War. It shaped our attitude to the League of Nations; it made us cowards in the Rhineland; it distorted our policy in Abyssinia, which led Italy into its adventures there; and, overall, it was a disaster, compounded by regular voting against the Defence Estimates by the Labour Party and a failure of the Conservative Party to face up to its international duties. We face doing that again. This Government are in danger of being complicit in an act of monumental moral cowardice, which is where we are today.
There was never a possibility that we would get away without paying our bills. The £39 billion, which is being talked about as though it were some donation, is in fact the sum total of the liabilities we have contracted by sitting round the table in Brussels over many years. It contains all of the decisions that we have been complicit in taking. We cannot get away without paying it, unless we want to be international debt welchers, who will be taken through every court in Europe. We would also be distrusted by any international civil servants, because they will say that if we can abandon our contribution to the European Union, we could abandon it to the UN, UNESCO or any one of the international bodies we belong to. We would become international pariahs, and that is not on.
It was also inevitable that the final deal would be fashioned in such a way that no other country would be tempted to follow us. For the EU 27, the terms had to be substantially bad enough for others to decide not to leave. Allied to this, it has enabled a few outstanding grudges to be sorted out. Britain has blocked European defence for years, and now Germany and France can go ahead. We have been excluded from projects such as Galileo, and as the able former Minister, Sam Gyimah, said, we have “no voice, no vote, no veto”. We are told we will be consulted to the degree necessary. We might be, but our voice will only count if it suits the people who are listening to it. We will not be in the room. We will not have the voice, the vote or the veto. We will be outside the room.
On the practical details, when we, as Conservative Members, met Gavin Barwell, he drew attention to the non-regression clause on workers’ rights. When I challenged him, he said, “Oh, no, I am sorry, it isn’t enforceable”. I want to ask the Minister not to reply tonight, because it is too complex for his time in summing up, but to place in the Library a letter detailing what he intends to do about protecting employment rights within that non-regression commitment, particularly those covering paid holidays, rights for part-time workers, time off for working mothers and fathers, equal pay for women and limits on working hours, including a commitment to maintain the protection afforded by the working time directive. The noble Lord, Lord Mandelson, wrote me many letters when I was a Euro MP, asking me not to endorse the working time directive. I feel I am entitled to ask this Government whether they will endorse the working time directive.
If I could finish, and possibly upset a few more people on the way, I would counsel the Government not to do the politics of fear. It is not playing in the galleries. I live in Cambridge, and over the Christmas holiday I talked to many people. Their general reaction was, “We heard all this before. You said this in the run-up to the referendum, and nothing happened, so come off it, Richard, get real”. The argument for Europe is not about the price of carrots; it is about the future of this country as a player on the world stage and as a country which gives leadership and example by the values it believes in and projects. The amount of money we send to Brussels, which people carry on about, is frankly the price of a packet of peanuts compared to what we can do to make this world a better place. Please, stop the Brussels bashing and start realising where our future can lie. And do not make the mistake of the 1930s again.
Lord Wilson of Dinton (CB)
My Lords, it is a pleasure to follow such a strong speech in favour of remaining. It is also a pleasure to follow the noble Lord, Lord Inglewood, who—to my disconcertion—has made my speech, almost verbatim in some respects, because what I wanted to offer the House was the thought that the task which the Prime Minister undertook two and a half years ago was probably impossible. She could not deliver it, but she has done the best she could. It is not a deal which protects the interests of this country well enough. The price is too high. In the first half of my speech on 5 December I said that I could not recommend to my children or grandchildren a deal which left this country economically poorer, politically weaker and, arguably, less safe in the world. Nothing that I have heard in our three days of debate has changed that view. However, I want to add a point about the divisiveness of the debate.
We have been told that if we have a people’s vote—a second referendum—it might unleash strong passions, and that we should not do so because it is undemocratic. On the undemocratic point, I long for George Orwell’s comments on a criticism of asking the people what they think as being undemocratic. It is doublespeak of a kind which is quite hard to understand.
On the division, we have to recognise that the problem lies in a lack of clarity of thought about what Brexit was meant to achieve. I am not a politician, but it seems to me that the Brexit campaign, by vagueness, managed to unite some very disparate, different groups. For many years I worked for Ministers of different Governments, and in both the Labour and Conservative parties, there has been a strong streak of deep, visceral dislike of Europe. For one-third of my career I worked for Ministers who felt strongly against the Union, even though they were in Governments who supported it. I recall being told by Tony Benn, for whom I worked for four years, that I was a member of the politico-military establishment and that the EU was part of a global capitalist plot. He did not put it quite like that, but that was the essence of what he meant. I can also remember Mrs Thatcher passionately telling her Cabinet that the British people consented to join the Common Market but never consented to join a political union. The roots of Brexit in the Conservative and Labour parties, although they are strange bedfellows, are very deep.
Political movements succeed only when they resonate with the dreams, unhappiness, disappointments or ambitions and desires of the public. What did Brexit resonate with? Through its vagueness, it resonated with all sorts of different groups who wanted someone to blame and who had been encouraged, perhaps by an anti-European press—fairly or unfairly, usually unfairly—to blame Brussels. Those groups were disappointed, perhaps by austerity or the financial crisis. We should remember that financial crises ripple through the decades that follow them and have political effects 10 years later. It also fed into the north/south divide, resentment at not sharing in the prosperity which Europe has generated, and an unhappiness about the speed at which immigrants were coming to this country. Those are all very different grievances, and you cannot find one deal that meets all those problems and needs.
So, where are we now, on the eve of a big political crisis? We have only 10 weeks until the leave date. There are not many options left to be established on such a big issue in 10 weeks. The essence of where we are was summed up by the noble Lord, Lord Armstrong, when he said:
“When you’re in a hole, stop digging”.—[Official Report, 10/1/19; col. 2341.]
We need to stop for a moment; we need clear thought. Unless you know where you want to get to, you are not going to be able to get there. Unless you can agree your destination your path will be confused and muddled. It is a political process that can be solved only in the Commons. If the Commons accepts the deal before it, that settles it. We all have to accept that. If the Commons disagrees with the deal, it then has to consider no deal. For reasons I will not go over, that is far too risky and unacceptable. We cannot gamble with the fate of this country.
The question then is: are there any other options? Time is very short to explore that. The need for an extension of the deadline is almost inescapable. The question then becomes whether we have a referendum. If people say that it is too divisive to have a referendum, all I would say is that whatever we do, whether we remain or leave, our relationship with Europe will be divisive. It will go on only until we have clarity about the destination we want to reach and what sort of country we want to be. It might go on until we are all exhausted, or until a younger generation takes over. The young are the solution to the problem we are in. I believe the future will sort itself out only when they have the chance to take command. If we leave, I will simply drink a toast to the young, under whose leadership, in 30 or 40 years’ time, we will almost certainly apply to rejoin the Union. Until then, I shall vote for the noble Baroness’s Motion.
Lord Lansley (Con)
My Lords, it is a great pleasure and privilege to follow my Cambridge colleagues, my noble friend Lord Balfe and the noble Lord, Lord Wilson of Dinton. As my noble friend said, when one is in Cambridge one gets a different view of the British people’s attitude. I think that what we learn from talking to people in Cambridge is that the more the diversity and migration to this country for economic purposes that there is, the more we have benefited from it. When I look at my area, I am reinforced in my reasons for voting remain in the referendum. In passing, I should draw attention to my interests in the register.
More than 20 years ago I managed the European Parliament elections for the Conservative Party. We fought the campaign, which we won, as my noble friend Lord Callanan might recall—he was one of the successful candidates—on the basis of “In Europe, not run by Europe”. I do not think my view has ever changed. It is reflected in some of the contributions to the debate. The British people want to be in the common market, which is exactly what Margaret said and what my noble friend Lord Tebbit used to tell me time and again when I worked for him: we voted for a common market and we would like to have one. We did not vote for a political union and we do not want one.
The issue is how we can give the British people what they voted for in the referendum. My successor in Cambridgeshire will probably vote against the withdrawal agreement tomorrow. She does so in pursuit of a second referendum. To do that and to reject a solution that the Government have derived to the question of what our objective through Brexit is on the grounds that we did not like the result of the referendum—which I certainly did not—is morally bankrupt. We have to start by trying honestly to achieve the result the British people voted for in the referendum.
You can say that the agreement is not quite right, which I think the Labour Party is doing. The Labour Party might be politically motivated—it is for it to say or to deny—by the idea that if you pull the pillars down in the temple maybe the resulting disaster enables a general election or a referendum and the Labour Party will not be blamed for the catastrophe that follows. The Labour Party should take responsibility too. It was elected to this Parliament on the basis that it would implement the result of the referendum.
I want to emphasise this in the couple of minutes available to me: there is a difference between the Government and the Labour Front Bench that might point to where one needs to go in the event that the withdrawal agreement as proposed is not accepted tomorrow, which is into a permanent customs union. I remind the House that, during the passage of the withdrawal Act, the largest majority against the Government’s position was in pursuit of a customs union. The fact that that is the Labour Party’s one evident policy raises the question of whether the response tomorrow will not be, “It must be remain versus no deal”, but may be, “Perhaps we can adapt the withdrawal agreement further” and create what is, in effect, a customs union—a single customs territory—obviating the need for a hard border between Northern Ireland and the Republic of Ireland to a large extent, and, frankly, creating the possibility of a common market in goods while making sure that we do not become rule takers on services, which is the principal objection to any kind of EEA/Norway solution. We will predominantly be a services economy in future. That will allow us to undertake independent trade policy relating to services, investment, and the regulations and rules that are the meat and drink of modern trade negotiations. It is not about tariffs, but those rules and regulations.
I urge those in the other place looking at what I think of as the meaningful debate—even if we do not get the meaningful vote—to read and think about what we have said. They might reflect that, whatever their personal views, they have a responsibility as parties and as members of parties to deliver on the Brexit referendum; and, in the Conservative Party, to support the Prime Minister. That is one thing that has happened since the debate in December, which I did not have a chance to take part in: the Prime Minister has secured a further mandate from her own Members of Parliament to take forward her position. We should do that.
The day after the referendum, friends of ours from central European countries sent an email, not to us but to our children. Their children are a bit younger than ours. They said, “We are really sorry this has happened, but we want you to know that, whatever happens in the future, you are Europeans and you are our friends. We want your children to know that for the future, too”. We should absolutely put that at the forefront of our thinking. We are Europeans, we are friends, and it is on that basis that we should conduct our negotiations and, I hope, bring them to a successful conclusion.
Lord Berkeley (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Lansley. I see the latest exchange of letters between the EU and the Prime Minister, and the advice from the Attorney-General as just window dressing—aspirational, but having very little meaning. I compare it to a vision of Neville Chamberlain coming back from meeting Hitler, saying, “Peace in our time”. It was peace in our time, but it just delayed things for a bit longer. This is what we have now—just delaying things for a few more years. Today and on other days we have discussed endlessly the question of Northern Ireland and southern Ireland and where the frontier is. If we have a different single market and customs union between us here and the Republic, we will have a frontier somewhere. It may be in the Irish Sea; it may be between Northern Ireland and the south. But it will be somewhere, unless we somehow integrate. We should be told, if we are not having a hard border, what are we going to have? It is pretty fundamental.
What did the public actually vote for in the referendum? To leave the EU. It seems that the Prime Minister and her Cabinet have since added several red lines that are very unhelpful to the economy and people’s understanding of what may happen. I do not think it is what the people voted for in the referendum. To give a couple of examples, there is a continuing obsession with immigration, and an inability to separate asylum seekers—enormous numbers, coming in the shape of 20 people in one boat—from the hundreds of thousands who come from other parts of the EU to work here, very hard and very well, most of them sending money home to help wherever they come from. The NHS, agriculture and the hospitality industries spring to mind. The noble Baroness, Lady McIntosh, talked a lot about the agricultural sector. But considering that something like 90% of the workers in slaughterhouses come from Bulgaria, who will replace them? Who will pick our fruit and veg? I think Michael Gove, speaking at the Oxford Farming Conference last week, said that it will be all right because everything will be automated. I am not sure how you pick raspberries with an automatic machine—maybe somebody can—but we need these people. Unless we are going to instruct unemployed people here to do particular jobs, we are lost. I lived in Romania in the communist era in the 1970s, and watched the way local people were forced to do jobs. If they wanted to live somewhere—to have a flat—they had to work. It was not pleasant, because the people who did not work did not have anywhere to live and sat begging in the streets. I suspect that the noble Viscount, Lord Ridley, is calling some of us on this side Marxists or communists. I am not one of those, but we should be free to choose what job we have. But we have to encourage people to come here, work, and work hard.
My second example is the single market and the customs union, about which many noble Lords have spoken. Queues will form at frontiers, not just at Dover but in other places and on the island of Ireland. We have all been working on it and have seen what has happened. There will be queues because there are controls, and you cannot do anything about the controls—it is not only about customs and so on, but also about controls such as the phytosanitary ones. Then there is the consequence of big and small companies leaving the UK because they cannot get their goods in and out. We all read about the motor manufacturers, but SMEs are equally important. I have a friend in Cornwall who runs a company with eight employees who has already moved to the Netherlands because he cannot cope with the problems that are likely to happen after Brexit.
Very briefly, and as mentioned by my noble friend Lord Liddle, the third example is competition and state aid, which are very important. I know that maybe the leader of the Labour Party thinks we want to abolish state aid rules so that he can give lots of government grants to his friends, but the Tory party has got there first, giving a £13 million contract to a new ferry service to go from Ramsgate to Ostend without seeking competitive tenders or saying what it is for. We all need the state aid legislation and I hope it will continue.
Where does this lead us? Many noble Lords have spoken about this but Parliament has to honour the wishes of the people in the referendum two and a half years ago. Would Parliament do that five or 10 years ahead? I do not know but surely in a parliamentary democracy it is for the Members of Parliament to make the final decision. It seems that the only solution, if we are to increase our prosperity and retain jobs and business, is for the Members of Parliament to make a decision themselves. Why should they not do that on a free vote? I am sure that those who have been in the House of Commons will tell me that is completely impossible but why should they not? They are quite sensible people—most of them, anyway—and probably much better at making a decision than the general population.
I hope that we will see sense. I will fully support my noble friend’s amendment tonight but let us remember that while we have been in Europe for 40 years for many reasons, the most important thing is to have preserved and retained peace. We must continue to do so.
Lord McNally (LD)
My Lords, listening to this debate criss-crossing the Chamber, with not all the speeches on one side going one way or the other, has reminded me of a story that Denis Healey used to tell in the 1960s when he was Minister for Defence. A man came to him saying that he had the answer to the Russian submarines patrolling undetected in the North Sea. His solution was to boil the North Sea and, when the water evaporated, the Russian submarines would be left high and dry for all to see. “But how do I boil the sea?”, asked Denis. “Look here, Mr Healey”, said the man, “I have given you the solution. It is up to the Government to work out its implementation”.
After three Brexit Secretaries and the abandonment of numerous red lines, we are left with a compromise which no one defends as anything but the least worst solution. As the noble Lord, Lord Wilson, indicated, what the Prime Minister has been trying to do so valiantly over the last two and a half years is to boil the sea. The mandate which the noble Lord, Lord Lansley, the noble Baroness, Lady Stroud, and others have claimed because of the impressive 17.4 million votes ignores the fact that the vote was spread across a wide range of opinions. It goes from Sir John Redwood’s plans for a light-touch, small-state, buccaneering free-trade country to the socialist utopia that those such as Len McCluskey want. It was not a single mandate to achieve a single objective—hence the problem that the Prime Minister now faces.
It is becoming abundantly clear that the Prime Minister’s compromise offers only the prospect of us stumbling out of Europe with jagged edges and a mass of unfinished business, satisfying no one and ensuring—let us have no doubt—that the civil war in the Conservative Party will continue. In the circumstances in which we find ourselves, I do not see it as an outrage to give the people an opportunity to take stock in the light of the realities that have been exposed over the last two and a half years. The great benefit of living in a democracy is that there are mechanisms which enable people to change their mind. This is not the Charge of the Light Brigade, where we follow orders regardless of the knowledge that someone has blundered. Nor are we, like Macbeth,
“in blood Stepp’d … so far … that Returning were as tedious as”,
going back. We are a parliamentary democracy, with all the freedoms and maturity that that term implies. If ever there was a time to take back control, now is the moment.
I will be followed in this debate by the noble Lord, Lord Pearson of Rannoch, and I am sure that we will once again be presented with his particularly dystopian view of the European Union. I have been in here for nearly 25 years and I will give him full marks for consistency. What would worry me if I were a Conservative is how, over those nearly 25 years, the views of the noble Lord, Lord Pearson, have moved from being those of a rather eccentric voice on the Back Benches to being at the heart of the Conservative argument for where we go next. So let me repeat the view that has motivated me since my student days, reinforced by 50 years of working with and in the European Union. The European Union is the most successful example of multinational co-operation that the world has yet seen. It has set an example to the world of how old enmities can be replaced by fruitful joint endeavours, and it has massively helped to increase Britain’s influence and prosperity.
Recovering from the last two years will be no easy task. It will need Parliament and parliamentarians to regain the confidence to make decisions in the national interest. If, as I hope, that means giving the people the opportunity to have their own meaningful vote, those of us who will be campaigning to remain will have to address the fears that the noble Lord, Lord Skidelsky, and others drew attention to, which were so successfully exploited in 2016. We will have to renew our commitment to a Europe of peace and prosperity, underpinned by human rights and the rule of law. This is a once in a generation decision which every parliamentarian must take individually. It is the Corn Laws; it is the Norway debate; it is our opportunity to learn the lessons from this ghastly episode and say to the young people who will have to live with the consequences of it, “Here is your European future. The hope lives on, the dream will never die”. I will be voting for the amendment of the noble Baroness, Lady Smith, when the House divides.
Lord Pearson of Rannoch (UKIP)
My Lords, I am most grateful to the noble Lord, Lord McNally, for his generous comments. I refer students of the Brexit saga to what I said in your Lordships’ House on 30 January, 16 May and 20 November last year, and indeed on many occasions over the past 25 years. The burden of my recent song has been that our politicians and bureaucrats have never done a commercial deal in their lives, so do not understand the strength of our hand in Brussels or how to play it. I have recently come to see that our political media suffers from the same disability, so all three are now joined together in a lengthy cacophony with which our real people are getting very frustrated and angry.
Much of this noise is now directed against the supposed horrors of leaving the EU on 29 March without a deal, but I should have thought that the speech here today from the noble Lord, Lord Lilley, and the paper he published via Global Britain and Labour Leave on 7 January entitled 30 Truths about Leaving on WTO Terms, together with yesterday’s paper from Economists for Free Trade, No Deal is the Best Deal for Britain, should comprehensively close all that nonsense down. If those who, in truth, want to reverse the referendum result do not agree with those papers, perhaps they would publish a rebuttal, point by point, author by author. I look forward to reading it—not very hopefully, because they cannot.
No deal is fine but I come back to a concept which is even cleaner and simpler: the Government should accept that they will never get a deal out of the Commission which respects our referendum result, because the Commission’s main aim in life is to keep its project of European integration afloat, and if we break free and make a success of our restored independence, that aim will be even more damaged than it is already. So we should resile from clauses 2 to 5 of Article 50, cease dealing with the Commission and make a generous offer to the real people of Europe, through the Council of Ministers. Those real people are, after all, our friends, whereas the Commission is not.
We should offer them reciprocal residence for a period to be agreed, our continuing security support from GCHQ and our membership of Five Eyes, and continuing free trade together but under the WTO rather than the Luxembourg court. That offer would be generous because there are some 3.5 million EU citizens living here and only some 1.2 million of our people living there, and because if our offer of continuing free trade is not accepted and we are forced to trade on normal WTO terms, their exporters will pay us some £13.5 billion in new tariffs and our exporters will pay Brussels some £5.5 billion, a profit to us of some £8 billion—those figures were confirmed by Civitas this morning. The WTO would allow us to subsidise any of our exporters hit by the £5.5 billion out of their £8 billion profit. If our offer is accepted, we go on in free trade with our customers in the EU just as we do now: nothing changes and the vastly inflated problem of the Irish border disappears.
Your Lordships will be aware that I have floated the suggestion several times in the last year, but the Government have always replied that they cannot follow it, because “we are a law-abiding nation”—by which they meant that we cannot resile from clauses 2 to 5 of Article 50, because that would be breaking the EU treaty. However, the Luxembourg court has now confirmed that we can indeed resile from Article 50 unilaterally if we want to. That was agreed with me and my advisers. I also received a helpful Written Answer from the Government on 27 November, saying that:
“The UK has unilaterally withdrawn from 52 treaties since 1 January 1988. All of these have been multilateral treaties”.
So why not this one? Of course, if our offer is not accepted by the Council on behalf of its people, we should not pay any money at all to Brussels after 29 March—as indeed we should not under no deal. If it is accepted, we can be generous about that too.
I do not know whether the Government are taking advice from businessmen who know how to do deals and understand the EU, but I fear not. If they did, those businessmen would tell them that the most obvious madness in the Government’s approach to these negotiations has been to allow the Eurocrats to put the question of any leaving payment up front, instead of taking it last. When the Minister replies, will he say whether “nothing is agreed until everything is agreed” still applies in this respect?
I will end by underlining the warning from several noble Lords that, if the referendum result is not respected, thanks to the obvious and bewildering incompetence of our political and bureaucratic class, we may sow the seeds of civil unrest. Already, many of our white working class are simmering with anger at the way those in authority have turned a blind eye to the grooming gang scandal. It would be foolish to provoke them further in this sorry matter. The deal is not a deal at all: it is an abject capitulation. If it is voted down in the Commons tomorrow, I invite the Government to at least consider my proposal. If they have not the vision or political will to do that—and I fear that they may not—then let us embrace no deal and the WTO, and go forth into the world with good cheer.
Lord Naseby (Con)
My Lords, I never thought, just over 20 years ago when I came to your Lordships’ House, that this evening I would be debating withdrawing from Europe. The noble Lord, Lord McNally, is right. Previously, many thought that the noble Lord who has just spoken was not really on the ball—but he clearly is on the ball in relation to the challenges we face today.
I make it quite clear that I voted to remain. I had the privilege of working overseas for five years of my life—most of it in south-east Asia, although there was a period in Canada. I am used to trading and exporting; I am certainly used to negotiating with Indians in India; so my background is of someone who understands industry and commerce. I was a founder member, I think, of the young European managers’ association in the 1960s. I was an active member of the council of the European campaign of the Conservative Party. My heritage in relation to Europe is there even in my second name: Wolfgang. I think that that says enough for most people in the Chamber: it is in the genes, as they say. Yet I stand before you deeply worried about what is happening today.
In a sense, I have suffered for the cause. My noble friend the former Speaker of the House of Commons knows that I was her Deputy Speaker—and, more relevantly, chairman of Ways and Means. I took the whole of the Maastricht treaty. To remind your Lordships, that created the European Union, set up the euro and set up the ability for families to locate somewhere within the European Union. Some 25 days on the Floor of the House of Commons; four all-night sittings—and all it was, was four clauses and the Title. At the end of the day Tony Benn MP came into my office and said, “I am moving a vote of no confidence in you, Mr Chairman of Ways and Means”. I said, “What have I done?”. “You have done it far too well”, he said. “We have not really managed to persuade the Government to change”. I said, “That is all very well”—but at any rate we saw him off and the majority I got on that fateful evening of 27 April 1993 was 367.
So my commitment is there—but when I look at what may happen tomorrow in the other place, I am deeply worried. Because I deeply believe in what was the European Union as far as we were concerned, I do not think that my friends in the Commons face an easy decision. The suggestions that have been put before them are difficult to vote on. We all know—perhaps we do not all know but certainly I believe—that the methodology used to negotiate leaves much to be desired, not least the change of management on the way through.
So I am deeply concerned, but it is for those in the Commons to make their decision. I sat in a marginal seat, with majorities initially of 179 and 142—it improved a bit over time. When you sit in a marginal seat, you listen to what people are thinking. It was quite clear—was it not?—to all of us in the referendum that the majority of our citizens wanted to leave the EU. That is there in black and white. Unfortunately, the then Prime Minister did not quite decide whether or not it was binding. But they made that decision and we should respect it.
If tomorrow’s vote goes against Her Majesty’s Government, they will have to think really seriously about no deal. I made some calls over the weekend to hauliers in Northampton. “What will happen?”, I asked. “Are you going to be stuck at Dover or Calais?”. “No”, they said. “We have known it was coming. We have made preparations. We have altered the software. No lorry will leave Northampton to go to the continent unless it has clearance”—and they are totally confident that they can get that in a few weeks. I talked to other industrialists. Look at the City of London. It has invested in micro-offices throughout the 27 countries. This is happening up and down our country today. It has happened. Yes, the small businesses will face problems, and Her Majesty’s Government are supposed to be doing something about that.
At the end of the day, we all have to face up to our responsibilities. If the great British public want to come out of the EU, and if MPs do not vote for the Government tomorrow, in my judgment we will have to look at a hard deal. It is a deal. It is a challenging deal, but we need some leadership and some nerve. But the opportunities are there. Our trade balance with the EU is not that smart. We are in deficit and have been for years. We have never really looked at the Commonwealth. The Commonwealth has two and a half times the number of people there are in the EU. There is an ageing population in Europe and a young, thrusting population in the Commonwealth. I believe that the opportunities are there and it all depends on tomorrow evening. If the Government get their majority, so be it—good. But if they do not, I will not be afraid to stand up and accept that no deal is the way forward.
Lord Triesman (Lab)
My Lords, at the start of this debate, the most reverend Primate the Archbishop of Canterbury expressed two objectives. The first was, rightly, that there should be proper regard for real facts on the ground. He cited east Kent and elsewhere. The second, also right, was a desire to see a deeply fractured nation drawn back together by some form of reconciliation.
In my view, the worst thing about the Cameron referendum was arguably not the absurdity of trying to take so complex an issue to a conclusion by that lamentable route, or his palpable fear of Farage, or that he scuttled away after his failure; it was the deep divide that he bequeathed the people of the United Kingdom. While I hope for reconciliation, I do not pretend that it will happen anytime soon. The noble Lord, Lord Patten, was certainly right: we will not be divided by what happens in the near future because we are already deeply divided. I know that I cannot be reconciled to the atavistic nationalism expressed by some Brexiteers and I know full well that they cannot be reconciled to my instinct for internationalism and modernity. The much-researched social divisions in the United Kingdom may not be reconciled for a generation or more—certainly not by clustering around the Prime Minister’s unacceptable proposals. She never grasped what is involved in reaching out in a mature manner to all sides of Parliament.
The fault line between embedded nationalism and modern social democracy should not surprise us; it is visible in the United Kingdom, many parts of Europe and the United States. It has constituted the basis for turmoil in Europe for centuries. It has never gone away. Victories for nationalists have scarred Europe more than any other experience, yet we never seem to learn fully from such disasters. Where institutions build peace and security, we still seem to pull towards chaos and crisis. Nationalistic populism still has broad appeal, especially when it is focused on foreigners—people not like us who can be blamed for a failing economy that leaves people and institutions struggling, for austerity and for feeling humiliated. Those sentiments must be addressed fully and properly.
When was our politics more toxic? With the miserable negativity of the remain campaign, the mind-staggering mendacity of the leave campaign and its funders and the brutality of the language that is now common, have we ever known worse? I cannot be reconciled to that kind of world view. Brexit is not the cause, of course, but it picked the scab open. Hate crime, xenophobia, rhetoric about the “citizens of nowhere” and a hostile environment for the people who wish to live here make us an uglier society by the day. Across the street from us, fascists scream at MPs. I cannot speak at first hand of the place where either of our most reverend Primates celebrates his religion, but what has happened when my place of worship must be surrounded continually by large numbers of guards? Is this what we must live with now? I would rather face the struggle against nationalism because we cannot run from it, but I offer a sincere challenge to those who say that conciliation is possible; the noble Lord, Lord Russell of Liverpool, made a similar point.
It is plain that, until the last few days, the Prime Minister has not tried to reach out to others, and has then tried mainly to frighten them; nor has the leader of my party reached out to anyone. Our calamity has not found our Churchill and Attlee. We do not seem that grown up. Perhaps someone with the moral authority to do so can take the kind of approach taken by Desmond Tutu: to convene urgently an effort to find common ground, hopefully with the broader and more deliberative discussion advocated by my noble friend Lady Armstrong, between crashing out and rebuilding a decent, united United Kingdom. There is little time and I see no sign of the Commons Front Bench doing it. Were the most reverend Primate the Archbishop of Canterbury here, I would ask him—I will have to ask the most reverend Primate the Archbishop of York instead—whether the Church is up to the challenge of carrying out reconciliation, not just calling for it.
I support my noble friend’s amendment in these critical circumstances. It recognises the dangerous shortcomings in our security profile, about which my noble friend Lord Browne warned us on Wednesday. It is an astonishing position for a permanent member of the Security Council to find itself in as a nation. There must be a moment when the weight of economic and commercial evidence is acknowledged by Brexiteers, although I note that on 16 December Jacob Rees-Mogg said that crashing out will boost the UK’s economy by more than £1.1 trillion. What world is he in? Goodness knows, in his case. I have gone back over previous rounds of major European venture financing decisions—the sort of things that businesspeople study to see which way the investment wind is blowing. It is a discouraging picture: only one of the top 10 capital raises was in the United Kingdom. The picture for higher education and culture is equally ugly, as others have said. I do not buy shares in the crash-out sunny uplands myth peddled by the hard right. Those saying it—except perhaps the noble Lord, Lord Lilley—cannot truly believe it either. Mr Rees-Mogg and his colleagues want to convince us that we will enjoy a soft landing. What they always omit to tell us is what we will be landing in.
What worries me most, and I conclude on this point, is the failure to focus on the prospects of young people, who took no part in the decision and who have been ignored by Jeremy Corbyn among others. They have a say every few years in general elections—nothing is set in stone—and here we are trying to bind them more or less indefinitely to a decision which all the evidence shows they abhor. Few mistakes are more dishonourable than damaging the future of our children and their children. We will rely on them as the architects of the future. Let us give them a decent start.
Baroness Manningham-Buller (CB)
My Lords, I was never very good at maths, but I think I am speaker 237 on this subject, if we take the debates before Christmas into account. Therefore, the chances that I can say anything original, or something which has not been better put by someone else, are slight. There are, however, three things that I want to say.
The first is about science, amplifying what my noble friend Lord Stern said earlier this afternoon. I declare an interest as chair of the Wellcome Trust. Science done in the UK—note that I do not say UK science—is critical for our economy. It delivers 25% profit in perpetuity on every pound invested. It is key, as my noble friend Lord Krebs said before Christmas, for addressing our medical, societal, environmental and other problems. It is a fundamental part of this Government’s industrial strategy. Science depends totally on international collaboration, and the easy movement of researchers is vital to that, as the noble Baroness, Lady Thornton, and my noble friend Lady Masham said.
I have visited many labs in the United Kingdom, and I am extremely excited by some of the science being done there. I have never been into a lab staffed only by British citizens. They are staffed by citizens from all over the world, but many from Europe are leaving. Others are not coming. At the Sanger Institute in Cambridge, which is probably at the moment—it may not go on being so—the world’s leading genomics institute, discovering genetic causes of disease on a weekly basis, there has been a 50% drop in those from Europe wanting to come and work there. Why? They feel unwelcome in the narrowly nationalistic country we risk becoming. I fear the gradual diminution and weakening of our science, and that concern is shared by all the scientists I have spoken to. That fear will increase in the event of no deal.
Wellcome currently spends about £1 billion a year, mainly here, on medical research. To that extent, we are a major supporter of science done in the UK—I should also add that we fund in 70 other countries—but that support is not unconditional. If the excellence of science here diminishes—and we will do our best to prevent that happening; it is not an outcome any of us would want—we shall invest elsewhere.
As noble Lords might expect, my next subject is security. The intelligence work of my former colleagues in MI5, MI6, GCHQ and comparable European organisations is outside the treaties, and will always remain so. No nation is willing to contemplate delegating such critical powers to the EU—indeed, suggestions that they should are usually rebuffed by our partners.
It has never been the case, as one current Cabinet Minister asserted in the run-up to the referendum, that the EU determines who we share intelligence with. That is a national decision. So this suggestion is nonsense. As is, I am afraid, the suggestion made last week that the withdrawal agreement and the political framework somehow jeopardise our national security by putting it under EU control. The words do not say that, and it would be completely against the tradition of the past 30 or 40 years.
Also nonsense is the suggestion that it will somehow upset the Five Eyes community. Let me remind the House that that in-house speak refers to the Americans, the Canadians, the New Zealanders, the Australians and ourselves—the English-speaking intelligence world. There are other groups, including the European and Commonwealth groups, and the Five Eyes community has always valued our link to the EU. The threats we face are global and we need the closest collaboration with all, not to have to choose between Five Eyes and Europe.
I wish to acknowledge here our gratitude over many decades to the security and intelligence services of Europe. They have given us unstinting help, saving British lives and working in close trust with us. We have always endeavoured to be generous in return, and I strongly endorse what my noble friend Lord Ricketts said on this subject before Christmas.
Security and intelligence are integrated increasingly with police work. Of real concern to me is what would happen in this area with no deal, as in science. The noble Lord, Lord Browne of Ladyton, laid out the issues, and the Commissioner of the Metropolitan Police has been explicit about the dangers to our citizens if we leave the EU without a deal and without addressing the effects of rupturing the links that bind us on security—one example of which is the European arrest warrant, which others have mentioned. I also feel pretty queasy that Mr Putin is so much in favour of what we are trying to do.
Finally, I turn to language, which the noble Lord, Lord Triesman, mentioned. This matters, as it creates an impression that no fine sentiments or lofty aspirations can dispel. We all deplore the abuse hurled on College Green at a Member of the other place. However, I have not forgotten, and am deeply ashamed, that our previous Foreign Secretary compared the EU to Nazi Germany, while the current one chose instead the Soviet Union, thereby insulting our long-standing friends, many of whom are our closest allies in NATO, which was created after the collapse of Nazi Germany to address the threat from the Soviet Union.
I have run out of time. Whatever the outcome tomorrow, and from what follows, I hope we will listen to the most reverend Primate and try to heal our nation. To do that, let us stop abusing and stick to the arguments, the reality and the evidence, not the myths, the lies and the magic.
Lord O'Shaughnessy (Con)
My Lords, it was with some trepidation that, as one of my first actions on returning to the Back Benches, I put my name forward for this debate. However, my experience as a Minister over two years, including leading on Brexit preparations for the Department of Health, has compelled me to speak for the merits of the Prime Minister’s deal and to highlight the deep problems that exist with both a no-deal outcome and remaining in the EU. At the heart of it, those are the three options before us, and that is how Parliament must choose.
On 23 June 2016, I voted to leave the European Union because I do not believe that it is in the long-term interests of this country to remain a member. As we know, the leave campaign won that referendum, a decision that the two main parties pledged to honour both at the time and in the subsequent 2017 general election, as my noble friend Lord Lansley reminded us. Having made that commitment, it followed that the UK would leave under one of two possible circumstances: either having struck a deal with the EU or with no deal in place. Parliament agreed with this logic and, by triggering Article 50 and subsequently passing the European Union (Withdrawal) Act, made sure that the default position is that we leave the EU on 29 March this year—deal or not.
Throughout the past two and a half years, therefore, I have been prepared to countenance leaving without a deal, as indeed should have any parliamentarian who voted to honour the referendum result. Those now attempting to renege on their previous commitments by passing fatuous anti-no-deal Motions, with no alternative in place, are guilty of empty virtue-signalling that would bring us no nearer to a solution.
However, it has become clear to me that there are very grave risks involved in leaving without a deal. It is absolutely right that the Government continue to prepare for this eventuality—after all, Parliament has passed this outcome into law, and failing to fulfil that obligation would be unforgiveable. But given the risks to the continuing supply of essential goods on which our health and livelihoods rely—not Project Fear but Project Reality—I cannot join those who positively support a no-deal outcome. It may yet happen—I hope not—but to blithely embrace this option without acknowledging the concrete short-term risks is reckless in the extreme.
The second option is that we remain in the European Union. The Prime Minister has outlined today the political ramifications of such a decision—which in my view would turn what has been a divisive but largely peaceful political process into something more sinister. But it is at least an honest and transparent policy, unlike the so-called people’s vote. There are such obvious and fatal practical problems with the proposal. What would the question be? How would the process work within the time available? I have asked many proponents and never received a straight answer. But those pale beside the profound flaws in this idea.
First, the people’s vote is supported only by those who lost the first time round. It is precisely the kind of “the people got it wrong, let’s ask them again” referendum that we used to rightly chastise our European neighbours for staging under pressure from the European Commission. It needs to be understood that the proponents of the people’s vote are not interested in earnestly seeking the people’s views in order to find a way forward. They only want a referendum so that voters can be told to stop being so stupid and agree at last with the so-called rational people who believe they know better. It would be more honourable if the people’s vote lobby just said what they really think: “Hang the referendum. Let’s just stay in”.
Secondly, are we honestly supposed to believe that if the answer came back again “leave”, the proponents of a second referendum would accept this decision? Quite. If 17.4 million votes last time was not enough, why would next time be any different? People are not stupid and a second betrayal would be too much for our politics to bear.
So we come our third option: the deal. Winston Churchill said that:
“Democracy is the worst form of government except for all those other forms that have been tried from time to time”.
I know that some colleagues apply a similar logic to the withdrawal agreement. I am rather more positive about it, and this is why. In negotiating Brexit, the Prime Minister was tasked with achieving two seemingly opposing goals: ending the free movement of people while maintaining free and frictionless trade with the EU. That is precisely what she has done. Under the withdrawal agreement and political declaration we will end free movement, end large and compulsory annual payments to the EU, leave the common agricultural and fisheries policies and finally escape the Commission’s relentless march towards political integration. At the same time, we would maintain alignment with the EU on goods—critical to our consumers, including NHS patients, but a decreasing part of our own economy and future trade prospects. Critically, we keep open the Irish border, honouring the Belfast agreement, boosting the Northern Irish economy and keeping our union intact. If we were to move into the backstop after the transition period, this cherry-picked arrangement would become our ongoing relationship. And that is supposed to be the worst-case scenario.
It is true that the deal has its flaws, but the idea that there is a totally different deal out there to be had is the stuff of fantasy and unicorns. By reconciling the apparently irreconcilable and, in doing so, forcing the Commission to pull apart its supposedly indivisible four freedoms, the Prime Minister has secured an historic agreement. It is now time for every parliamentarian who pledged to honour the referendum result in this House and, more importantly in the other place, to look to their conscience and support this deal.
Lord Radice (Lab)
I congratulate the noble Lord, Lord O’Shaughnessy, on his skilful speech but, speaking as the last opposition Back-Bencher in this marathon debate, I hope the House will forgive me for a brief personal view of what has happened and where we are now.
For me, the referendum result was a great blow. I had been a committed European since I was 18, but what made the remain defeat even harder to bear was the reaction of one of my 10 grandchildren. With tears in his eyes, and in words I shall never forget, he cried out, “You do realise, grandpa, that your generation has just ruined my life”. Perhaps that was a bit over the top, but it made me determined to devote what was left of my political career to doing what I could to ensure that the lives of my children’s and grandchildren’s generations were not blighted by the referendum result. My speech this evening is for them.
Speaking in the first Lords debate after the referendum, I accepted the result, but I argued that it was essential that leavers and remainers should get together to work out strategies that were in the national interest and, above all, to retain access to the markets of the EU. I also said that we should not trigger Article 50 until we had worked out a proper plan, and I stressed the crucial role of Parliament in bringing the country together, which I believe was and is essential,
The new Prime Minister said that she saw her task as being to take the UK out of the EU, but the unanswered question was how she was going to do it. Would Mrs May come down on the side of the hard-line Brexiteers and go for a hugely risky hard Brexit, or would she decide to be a pragmatic national leader and reach out across party boundaries to pursue the best possible deal for the country? Let us not forget that the UK’s recent prosperity has been based on our trade with other member states and on highly successful inward investment from outside the EU. We should also not forget that being a member of the EU has benefited the UK in a number of other crucial ways: in improved environmental and social protection; in research and education; in security and defence; and in our influence, power and prestige in the world.
The obvious Brexit strategy should therefore have been to mitigate the loss of these great advantages by remaining as close as possible to the EU. Instead, in her January 2017 Lancaster House speech Mrs May took a disastrous wrong turning. She laid down red lines which could have been lifted straight from a Brexiteer pamphlet: no single market; no customs union; no deal is better than a bad deal. By short-sightedly trying to please the Brexiteers she made it almost impossible to arrive at a deal which was in the overall national interest.
Over the two and half years since the referendum, Mrs May has twisted and turned as she has vainly attempted to reach a settlement with the EU which was acceptable not just to business but to the nation as a whole. First, we had the Chequers White Paper; then, after that was rejected by the Brexit hard-liners, we were presented with the withdrawal agreement and the political statement which Parliament is now debating. It seems likely that, despite Mrs May’s undoubted persistence, the latest example of which we saw this afternoon, her deal will be defeated in the Commons, partly because of the unacceptability of the Irish border backstop to the DUP and the Brexiteers, and also partly because the agenda set out in the political declaration is too vague and would take years to negotiate.
If the withdrawal agreement is defeated tomorrow, it is anybody’s guess what happens next. It would be an unmitigated disaster if the no deal that Brexiteers are so enamoured of—we have heard some of them this evening—was not also decisively voted down. The leavers never told us that our motorways would be gridlocked and that there would be shortages of critical medicines and other essentials. The leavers never told us that a no-deal Brexit would lead to the violent dislocation of virtually every legal arrangement between the UK and the EU. So instead of a so-called smooth glide path into a new relationship with the continent, Britain would be in freefall.
Mrs May could, of course, try to seek other options, including further tweaks to her withdrawal deal or, as a last gasp, going for something which she ought to have considered much earlier—Norway-plus, for example—but these options suffer from disadvantages, above all the lack of time and the uncertainty of a parliamentary majority for them. There is, of course, the possibility of a general election, but it is far more likely that because there are no other real alternatives we will be forced into a second referendum.
I am aware of the possible dangers of a second referendum. We have heard some eloquent ones from the most reverend Primate. However, if there is no parliamentary majority for any proposal, it could be necessary to consult the voters again on the options, including remaining in the EU. In order to make sufficient time for such a referendum, we should also have to ask for a delay in the implementation of Article 50.
None of us can predict the future, not even some of the clever people we have heard from today. However, I am convinced that as time goes by, the difficulties of leaving the EU and the advantages of membership will become ever clearer. Above all, I am convinced that generations of my children and grandchildren will not stand for a disastrous no deal or a half-baked arrangement which will not only leave our country poorer but separate us from our close continental neighbours who should be our natural partners. They will decide to remain a member of the Union which has provided Europe with peace, stability and prosperity for the last 60 years. I support the Motion.
Lord Baker of Dorking (Con)
My Lords, we should be very proud of the last three days of this debate. I think that there is no legislative assembly in the world that could have had a debate such as this, with such range, variety, knowledge and eloquence—all without rancour. That should be a lesson to the other House.
The House will have noted slightly different voices from the Conservative Party. That is reflected by my friends on the Front Bench. We have known each other for 20, 30, 40 and in one case 50 years and we have different views. My noble friends Lord Forsyth, Lord Lamont, Lord Lilley and Lord Hamilton made passionate speeches arguing for a no deal. They are bemused that I can still support the May package. I think that the kinder ones hope that it is not an early sign of senile dementia.
But I have my memory and I remember the debates in 1972 in the House of Commons. They were all about trade—about New Zealand and Australian butter and lamb, sugar from the Caribbean and exotic fruits from our ex-colonies. We voted for a common market. We voted again for a common market in 1975. The Europe of then and the Europe of now are two totally different communities. The people who recognised that were the two best speakers in those debates: Michael Foot and Enoch Powell. They forecast what would happen through the loss of our sovereignty and the increasing power of the centralising forces of Europe.
I realised that when I became a Minister in the Thatcher and Major years and went as Home Secretary to meet the other local Ministers of Justice. When we first got to know each other, we had to get their names and countries right and try to remember who they were at the next meeting. But they often changed; they were birds of passage. Some got promoted, some got sacked and in our case one got arrested—and they constituted the body that was meant to control the power of the Commission.
The Commission sat at a great long table, always the same people month after month, year after year. It was extraordinary. We never really managed to cope with them. We had a pretty motley crew as Ministers of Justice. The Irish Minister of Justice had to resign because he fiddled his election expenses, the Italian Minister of Justice went to jail for a massive fraud in Naples and the Spanish Minister of Justice got the jackpot prize: he went to jail for murder.
This did not entirely make me love Europe more. For me, 29 March is almost sacred because it is the day when we do not have to bother any more about the European Commission or the European Parliament or majority voting or being told by officials what to do from Europe. We gain the power to make our own laws, in our own way, in our own Parliament, for our own people, in our own country. We get back our constitutional sovereignty as an independent nation state. That is why I voted for Brexit. It was a political decision—the noble Lord, Lord Soley, talked about political and trade decisions.
I know that we will not get all our freedoms back in one day. We have freedoms on fishing, agriculture and free movement, but not on trade. I am glad that we will not get freedom on trade back in one day, because it will take at least two or three years. Whatever happens in the other place, they will need a period of transition to negotiate a deal—and they will. It is possible to do a deal on trade provided that both parties want it, and we will get a satisfactory deal, but we have to be patient and to wait. At times in all political life you have to be prepared to wait and to be patient. It is difficult at times for politicians to be patient, and certainly the Brexiteers are not very patient, but they must learn to wait. As Milton said—I have forgotten what he said, although I shall remember once I have sat down.
There is clearly not a majority for no deal in this House and I do not believe that there is a majority for it in the country. The details around no deal are very problematical, as was evidenced in the speech of a strong non-Brexiteer on our side, my noble friend Lord Bridges. He said that when there are so many unknown features around it and the decision is of such magnitude, you cannot depend on, in his words, “maybe” and “cross your fingers”. So I believe that no deal will not happen. However, as many noble Lords have said in this debate, the date might be moved from 29 March to 1 July. Personally, I would oppose that because I think it would be the end of Brexit. In those three months, the campaign for a second referendum would gather pace and roar ahead.
Lord Baker of Dorking
The party that is cheering is the party that is falling in the opinion polls—but never mind. A second referendum would be bitterly divisive in our country, politically and socially, and the campaign would be incredibly bitter. One thing that we have learned from Brexit is that civility is driven out of political debate and discourse. MPs get death threats and are abused as they go to the House of Commons. There is venom and hatred, and a second referendum would be so passionate on both sides that there would almost be a civil war. The one thing that would win in a referendum would be populism. The major parties would certainly divide, populism would arise and we would enter the dark age of populist politics. That would be the consequence of a referendum.
Finally, I will say this to Boris and Jacob. They have barely been mentioned in this debate but they are quite important people in this matter. They have a sense of history and I say to them both: reflect on the fact that the liberties that we enjoy and which make this country such a wonderful place to live in and a magnet for many other people did not arrive in one day, one week, one month, one year, one decade or one century; some of them came creeping slow. But they had one characteristic difference: they had a start day when somebody in the past said, “I want the right to vote”, “I want the right to speak freely”, “I want to have the right to march and protest” and “I do not want to be arrested in the middle of the night”. These things come slowly.
Finally, I remind Jacob and Boris what the poet Oliver Goldsmith said of their great hero, and mine, Edmund Burke in the 18th century. He said that Edmund Burke was,
“too fond of the right to pursue the expedient”.
The Brexiteers are too fond of the right to pursue the expedient—and tonight I shall be voting in the expedient Lobby. It is not the most romantic Lobby, but it is the only one that can secure Brexit for Britain and I commend it to your Lordships.
Lord Flight (Con)
My Lords, I thank my noble friend Lord Baker and congratulate him on his wit and wisdom, but I cannot agree with his diagnosis. I am disappointed that the Motion in the name of the noble Baroness, Lady Smith, contains the words,
“a no deal outcome … must be … rejected”.
As I see it, and as has been articulated by many who have spoken today, the reality is that the WTO arrangements facilitate the best outcome for Britain where otherwise we are potentially in a dangerous constitutional mess. We have a bad deal in which we would remain a rule-taker under an ECJ jurisdiction covering large areas, with no influence on drafting EU laws; we could not negotiate our own trade deals; and, as we are well aware, the deal creates unacceptable border problems in Ireland. I commend in particular recent contributions of my noble friends Lord Lilley and Lord Bamford, and express my agreement with what my noble friend Lord Ridley said this evening.
My noble friend Lord Lilley was, as I think everyone knows, the Trade and Industry Secretary involved in setting up the WTO. I urge those who remain concerned about a WTO deal to talk to the noble Lord and get the views of a professional on what are and are not serious problems. He has no fears of our operating under the WTO and cites 30 reasons to embrace it. This would end uncertainty and provide a clean break. It would provide a safe haven for businesses and consumers. Moving to WTO rules also makes it easier to take up Tusk’s Canada-style free trade offer, under which we could control how we trade. In short, WTO is the correct and positive response to the referendum vote and to the position in which we now find ourselves.
Baroness Ludford (LD)
My Lords, normally I would try to reflect speeches from across the House in my winding-up, but this evening I will concentrate on the Liberal Democrats. This is partly because the loss of our late colleague Lord Ashdown is much on our minds. Obviously the primary grief is felt by Jane and the family, but we too, his political family, are nothing short of devastated. We badly miss his voice. Tweets of Paddy’s from two months ago remain online; I am afraid they are not complimentary about the governing party, saying,
“and so our beloved country is once again held to ransom by squabbles in a Tory Party who give rats in a sack a bad name”,
and,
“the great unravelling begins. If you want a playbook for what next, look to the Tory civil wars of the Com Laws in 1846”.
The fact is that, unlike Liberal Democrats, whose hallmark is openness to the world, Tories have long been split between international and insular tendencies; that continues today. Some talk, admittedly, about “global Britain” but this seems more about resurrecting the Empire—or at least the Anglosphere—than a true spirit of international and multilateral co-operation. Modern Liberal Democrats can still subscribe to the words of the radical Liberal Richard Cobden, who cited among the benefits of repeal of the Corn Laws that,
“it would introduce through mutually advantageous international trade a new era of international fellowship and peace”.
That sentiment endures, both as the rationale for the European project after 1945 and in the DNA of the modern Liberal Democrat party; no wonder the two are so well-aligned. As my noble friend Lord Wallace of Saltaire said last week, a global Britain should be within, not against, a global Europe. Hence one of Paddy’s successors, my noble friend Lord Campbell of Pittenweem, insisted in this debate last Wednesday:
“I am passionate about remaining in the European Union. I venture to observe that I am just as passionate about remaining as those who are passionate about leaving. I respect their passion and, in turn, I expect them to respect mine”.—[Official Report, 9/1/19; col. 2281.]
Another previous leader, Jo Grimond, in his book The Liberal Future 60 years ago, wrote:
“Liberals dissented from the original decision not to take part in the Iron and Steel Community. A Liberal foreign policy towards Europe would be based on the firm belief that Britain is a part—a leading part—of Europe”.
But it was not just Liberals in our Liberal Democrat heritage who carried the flame for Europe. My noble friends Lord Rodgers of Quarry Bank and Lord Taverne came via the Labour Party and the Social Democrats. They reminded us in this debate how they were part of that brave contingent of 69 MPs who defied the Labour leadership and its three-line whip to vote to join the then European Community in 1971. My noble friends Lord Wrigglesworth and Lord McNally, also once SDP, stressed internationalist principles too. They were led by Roy Jenkins, later our Liberal Democrat Leader here in Lords. In the epilogue to his European Diary as President of the European Commission, Roy recounts the formation of the SDP, noting simply and unremarkably that,
“the SDP and its Alliance partner maintained a wholly committed European position”.
Roy Jenkins also harks back much farther in our political roots when, in his biography of William Gladstone, he quotes from Gladstone’s Midlothian campaign, when he was much concerned about atrocities in the Balkans against Bulgarians and Montenegrins. Gladstone, he records, spoke of a,
“nation called to undertake a great and responsible duty”,
in regard to “the peace of Europe” and the need for,
“right and justice to be done”.
These are uncanny echoes of Paddy Ashdown’s insistence that we had to take an interest in the Balkan wars of the 1990s and take on a responsibility to protect in particular the Kosovars and Bosnians being subjected to ethnic cleansing on our continent.
In her very generous comments about Paddy Ashdown in her debate on the western Balkans last Thursday, the noble Baroness, Lady Helic, said:
“During the Bosnian War in the 1990s, most politicians, including some from my own party, pontificated from a distance. Lord Ashdown went in and out of Sarajevo during the longest siege in modern history, across a risky mountain route and through a tunnel burrowed into the city”.—[Official Report, 10/1/18; col. GC 265.]
Hence, when my noble friend Lord Wallace of Saltaire wrote a slim Penguin tome for the 1997 election called Why Vote Liberal Democrat?, in words he could repeat today, he wrote:
“Nostalgia for an imperial past, combined with hostility to closer cooperation with Britain’s neighbours, offers no credible way forward ... Liberal Democrats are internationalist by instinct and by intellectual conviction ... We believe that Britain can achieve more through sharing sovereignty and pooling power than by standing alone ... Britain is a European country. Our international interests and responsibilities start with our concern to promote peace, stability and prosperity within Europe, in partnership with our European neighbours”.
Another consistent theme of the Liberal Democrats is social justice. My noble friend Lord Steel of Aikwood, yet another former party leader, said in this debate:
“In the light of the last referendum result, the Government should also pledge themselves to remedying the real grievances in parts of the country that have felt neglected over many years”,—[Official Report, 9/1/18; col. 2249.]
while 25 years ago, in his book Beyond Westminster, Paddy observed how Britain—like now—was in,
“a profoundly depressed and bewildered state”,
with,
“a sense of hope that has died and a leadership that has failed”,
and,
“a dangerous mood of fatalism—a loss of national self-confidence and even self-respect”.
That is why on these Benches we insist not only that there is a better option than any kind of Brexit, which is to remain, but that British politicians should then turn our energies to remedying through our domestic efforts the grievances, loss of hope and anger at being neglected that Brexit will make worse.
We are outraged not only by the shabby treatment this Tory Government are meting out to the 5 million EU and UK “free movers” but by the extraordinary way the Prime Minister has trumpeted as her number one achievement that free movement will end. She seems totally unable to appreciate that she is tearing away from Brits, young and old, one of the greatest benefits of the EU: the ability and freedom to move around Europe to work, study or retire. That is, unless they are rich enough to purchase residence or a passport in another EU country, as perhaps some in this House are.
Liberal Democrats make no bones about it. We hope that in a people’s vote—a final say—the British people will choose to remain, with all they know now three years on. This party, our predecessors, our leaders and our members are united in believing passionately, as we always have done, that nothing can be as good as EU membership. To hijack Martin Luther, we cannot and will not recant anything, for to go against conscience is neither right nor safe. Here we stand, we can do no other. Indeed, we can do no other than support the Motion in the name of the noble Baroness, Lady Smith of Basildon.
Baroness Hayter of Kentish Town (Lab)
My Lords, the Motion in the name of my noble friend Lady Smith, first, acknowledges the Commons’ responsibility for deciding whether the deal is ratified, a decision echoing that of 28 October 1971, referred to earlier, when the Commons, including our Lord Speaker and 19 other current Members of your Lordships’ House, voted to enter the Common Market—albeit another 13 voted no. Our role—indeed, as my noble friend Lady Ramsay says, our duty—is to offer our advice, which is what we do today.
Secondly, the Motion rejects no deal. That inane slogan,
“no deal is better than a bad deal”,
was voiced before the Prime Minister understood what no deal meant. We know now: food and energy prices up; fresh produce down, even rationed; fewer medicines, although they are going to be safe in Matt Hancock’s new fridges; ports jammed; manufacturing damaged; and checks and delays clogging just-in-time supply chains. Have the Government never listened to Toyota, Jaguar, Honda or Nissan? As for the economy, the value of the pound would fall and we would have perhaps the steepest slump since the war. The CBI has warned of profound economic consequences, with GDP cut 8%. Our security would be jeopardised: no deal would have a real impact on the Government’s ability to protect the public. Virtually overnight, a million UK citizens across the EU would suddenly be in limbo. To those who say we are crying wolf, may I remind them that that four-legged beast did turn up? It is no wonder that the Civil Contingencies Secretariat briefed the Privy Council on no deal. The ABI begs Parliament to avoid crashing out. The City of London says it would,
“undermine financial stability, disrupting services … to households and businesses on both sides of the channel”.
The Business Secretary labels it a “dire prospect” causing “incalculable damage”, even as his own Government spend £80 million a week and redeploy 4,000 civil servants just to minimise the resulting disruption. That is what would happen, but even for those who want to go out on WTO terms, no deal means doing that with no transition. Therefore, no deal must be emphatically rejected.
The third arm of the Motion regrets the agreement’s damage to our prosperity, security and global influence. The majority of the 240 speeches over five days voiced deep anxieties about a deal which, even the Chancellor admits, will make the country poorer—a poverty, as we have heard from the Bishops’ Benches, borne largely by the poor.
On Northern Ireland, the deal’s shortcomings were exposed by my noble and learned friend Lord Goldsmith, my noble friend Lord Murphy and the noble Lord, Lord Bew, in December. Since then, and just as we restarted this debate, the Government issued 47 new paragraphs on Northern Ireland, evidence of their absence from the agreement itself. The document raises problems, not just because it requires primary legislation, in addition to the seven other Bills we have to do before exit, but because, as the Prime Minister said today, the Assembly could have,
“a seat at the table on the joint committee”.
But she made no mention of the same for Wales or Scotland. Interestingly, the document gives the Assembly a right to consultation on extending the transition, although, as we were warned by our EU Select Committee:
“It is far from clear … what role Parliament would have in approving any such extension”.
We might also note that the joint committee’s decisions, despite having the same legal status as the withdrawal agreement and being able to amend the withdrawal agreement, require no parliamentary approval. Meanwhile, as my noble friend Lord Griffiths noted, there is no mention of Wales or Scotland at all in the agreement, and nothing about improving the joint ministerial arrangements dealing with powers repatriated to devolved Administrations. So it is no wonder that the Welsh Assembly rejected the deal and asked the Lord Speaker to make that known to this House.
Perhaps most seriously, the political declaration is dismally inadequate as the architecture for our future relationship. It really is what the noble Lord, Lord Bridges, called a gangplank into thin air. It fails to foster trade and prosperity through a permanent customs union, even ruling this out by restating that independent trade policy red line. It ignores our wealth-generating services: the legal, accounting, financial, education and creative sectors. It fails to guarantee environmental, food safety, employment or consumer protection, while the loss of EU workers threatens food production, health and social care, SMEs, the cash-strapped start-ups and, of course, young people, with a £30,000 threshold for entry confusing pay rates with skill. As the noble Baroness, Lady Bull, who knows a thing or two about talent, said:
“Salary levels are not a proxy for skills”.—[Official Report, 5/12/18; col. 1074.]
Furthermore, the framework’s lack of certainty means that businesses cannot now begin to adjust to an unknown landing place, while the absence of assurances on civil jurisdiction leaves companies unable to plan for continued EU activity because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, warned, cross-EU civil enforcement would end.
Meanwhile, there would be weakened ability to use EU competition law when cartels are taking advantage of us, and there is nothing about staying in the EU Intellectual Property Office, meaning that trademark protection would have to be duplicated. The mere 26 pages offer little comfort to services, including financial services—some 10% to 15% of our GDP—where exports to the EU could halve.
On science, scholarship and medical advances, we have heard from the noble Lord, Lord Krebs, my noble friend Lady Thornton, and now the noble Baroness, Lady Manningham-Buller, that all of these would be undermined in the plans that appear before us. Accounting, auditing, design, education, culture, business and legal services are all just cast adrift. Worse, perhaps, is what the framework allows. Without a guarantee of being in a custom union with a strong single market relationship there would be no stopping the PM continuing to appease her ERG minority, with all the collateral damage described by the noble Lord, Lord Patten.
The framework should be more than just a bucket list, because Article 184 of the agreement requires the parties to negotiate an agreement in line with the political declaration. So what is in it matters, but it does not provide confidence regarding the continuation of our trading, diplomatic, security or cultural links with our close allies, near neighbours and long-term friends. It is written to favour trade deals with third countries—a mythical future ignoring the protectionist “America first” tendencies of the US President. The PM wasted two years negotiating with her own party. She put blinkered Brexiteers in charge, who rejected all evidence at variance with their ideological obsession. Labour’s alternative—we have spelled it out—is a customs union.
Baroness Hayter of Kentish Town
It has been on offer—and had it not been ruled out by that short-sighted red line, we might indeed have been talking about it.
The Government claim the deal will protect security, but outside the European arrest warrant and intelligence exchange this is simply not the case, as the head of the Met has warned. These are serious, precarious times as storm clouds gather, as the noble Lord, Lord King, described—but this deal, with its dangers for our economy, security and international relations, will lessen our voice in that troubled world as we face US antics, climate change and international security: we know the list.
The deal jeopardises our security and economy. That might keep the Tories out of office, as the noble Lord, Lord Heseltine, warned us in December. But that is little comfort, not just because Labour would have to rebuild the economy but because of the damage to public trust in democracy, especially among leave voters who genuinely believe Brexit would improve, not damage, their families’ lives and futures, as my noble friend Lord Liddle suggested.
The deal fails to unite the country, and that is the result of the Government’s refusal to engage with the 48%, the trade unions, business, consumers, Parliament or the Opposition. The duty of the Commons, as my noble friend Lord Brennan said, is to direct the Government. The noble and learned Lord, Lord Mackay of Clashfern, agreed that,
“if this deal is not accepted, the… question”,
of,
“what to do next… is for Parliament to answer”.—[Official Report, 26/11/18; col. 507.]
He also said that,
“if Parliament cannot solve this”,
we should call the whole thing off and,
“propose a Motion that we stay in the European Union”.—[Official Report, 21/11/18; col. 236.]
That other dangerous radical, the noble Lord, Lord Armstrong of Ilminster, similarly suggested that if the agreement is defeated, the Prime Minister,
“should, without further delay, revoke the notice of withdrawal”.—[Official Report, 10/1/19; col. 2340.]
This evening it is in the national interest for us to say that the deal is not acceptable for the future of our country. Even those who have given it their begrudging support describe it as “imperfect” and the “least worst”, “least bad” option. That is not sufficient for my grandchildren, your grandchildren or my noble friend Lord Radice’s grandchildren. Hence our Motion: no to no deal, and this deal will not do. I urge the House to support the Motion moved by my noble friend Lady Smith.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am pleased to close this debate on behalf of the Government. I thank noble Lords on all sides of the House for their contributions to this debate. It is a mark of the role of this House that even at this hour, the House is in its present form and so full as we conclude such an important debate on such a fundamentally important issue.
Trust and compromise. If we do not trust those with whom we engage, there really can never be room for compromise. If we have no means to compromise, we will find it impossible to achieve consensus. Trust and compromise. I am not a supporter of the idea of referenda. Like the noble Lord, Lord Stephen, I experienced at first hand the referendum on Scottish independence. It was attended by division, exaggeration and overstatement, and was immediately followed by demands for a second referendum that have persisted ever since. But this Parliament decided that the question of whether or not we remain or leave the EU should be put to a referendum. No one forced parliamentarians to do that. They passed an Act for the referendum by an overwhelming majority. They did not concern themselves overly at the time with the precise terms in which they were going to put that to the people—they were simply determined that it would go to the people.
Then they went to the people in a general election, and both principal parties put it forefront in their manifestos that they would respect the result of the referendum. Thereafter, this Parliament passed an Act to authorise the Executive to serve the Article 50 notice, which under international law would determine our membership of the European Union. Then, this Parliament passed the European Union (Withdrawal) Act, which defined the exit date for us to leave the European Union as 29 March 2019. So it was this Parliament which determined, both at the level of international law and in domestic law, that our exit from the European Union would take place on that date.
There followed two years of negotiations. In some places I hear those negotiations belittled. They were carried out by officials working to their instructions and performing to the best of their ability. Perhaps some would be prepared to acknowledge that, whatever the outcome of their actual negotiation. Without the withdrawal agreement I simply remind noble Lords that we do, under the law that this Parliament made and implemented, leave the European Union on 29 March of this year. That should be at the forefront of everyone’s mind.
We have heard reference to alternatives and mention of Labour’s six points. I was going to refer again to the lucid explanation of those points given by the honourable Member for Brent North, Mr Barry Gardiner, who is still the Front-Bench spokesman for Labour on the matter of trade—but I do not think I really need to repeat it. The noble Lord, Lord Liddle, gave a very adequate summary of Labour’s position on this. I would merely mention that the noble Baroness, Lady Hayter of Kentish Town, alluded to a customs union which, as described by Labour, would be directly contrary to Article 1 of the treaty of Rome and would effectively confer upon the United Kingdom, were the EU ever to accept it, a veto over the EU entering into free trade agreements with third-party countries. It is admirable in its breadth but hopeless in its intent.
Of course, the Liberal Democrats did not go into the general election with a mandate to respect the outcome of the referendum and their position, as I understand it, is that they are determined to keep the United Kingdom in the European Union by any legitimate means. I see them acknowledge that and I understand it.
Lord Keen of Elie
Legitimate means and democratic means—let us put it that way. They went to the country in the general election as well and returned with 12 seats in the House of Commons; the Scottish Conservatives returned with 13 seats in Scotland, a part of the United Kingdom that voted to remain. But then perhaps people had intelligently understood that the outcome of the referendum should be respected and that they should support those who were prepared to respect it.
We see reference to a second referendum. That would be seen by many as a constitutional outrage. The United Kingdom voted, by a majority of about 1 million people, to leave the EU. The noble Lord, Lord Grocott, touched upon this point: people such as myself from north of Watford understand the meaning of “leave”. It is not a factual question; it is more philosophical. Their reasons for voting leave cover a spectrum, from the sublime to the ridiculous and from the laudable to the laughable. But it was this Parliament which decided that that was how the issue should be determined, so look to yourselves.
A democratic decision can be reversed. If you choose a party in a general election, you may decide that you are not entirely impressed by it and, at a second general election, decide on a new party of government.
Lord Keen of Elie
I hear the noble Baroness, Lady Chakrabarti, saying that that is a good idea, but of course it has no comparison with the present situation, if we want to reverse the decision made in a referendum when it has never even been implemented. That is why people would regard it as something of an outrage.
As my noble friend Lord O’Shaughnessy observed, there are issues with the call for a second referendum. Indeed, many people would regard it as a charade, because those calling for it, or at least many of those calling for it, do not want the people to decide. They want the people to give them what they regard as the correct answer, because they did not give it last time. And there is no reason they would not ignore a second leave vote just as readily as they ignored the first leave vote. Of course, they seek to dress it up as the “people’s vote”. Who do they believe voted in the first referendum—sheep? It was the people’s vote.
I come back to the issue of trust. We have the withdrawal agreement and the backstop, which are and are intended to be temporary means for us to actually exit the European Union and do not, by themselves, determine our future relationship. That is outlined in the political declaration. If we do not trust the party with whom we are engaging, then all forms of agreement and negotiation are simply worthless. At the level of international law you cannot—short of war or gunboat diplomacy—force a nation or an international body to implement a promise or obligation if it decides not to do so. Whether it is an oral promise, a written assurance, a solemn undertaking, an international treaty or something written in blood on vellum, if they are determined to lie to you, to mislead you, to change their minds, you are simply going nowhere.
We hear references to the EU wishing to punish us, wishing to put us into a triple lock, wishing to hold the backstop in perpetuity. Yet the European Union says, entirely candidly, that it wants a fruitful future economic, security and social relationship with the United Kingdom, so why would it want to punish us? It does not want to enter a backstop and if it does, it wishes to do so for the shortest time possible. Nobody appears to have acknowledged that, in fact, great advances were made over the backstop in the negotiations. It was proposed originally for Northern Ireland only, which would have had the most profound consequences for our constitutional situation in the United Kingdom, but that is no longer the case. It embraces the entirety of the United Kingdom and by doing so it breaks the four freedoms that the European Union said would never be broken and produces the very cherry picking that it said it would never contemplate.
In addition, the European Union has made it clear that it wants to implement the terms of the political declaration as soon as possible. If we do not believe it, we should stop now, but if we trust it, then we can place faith in these expressions, whether in a formal treaty, a written declaration or correspondence from the President of the Commission and the President of the Council. If we trust the integrity of our interlocutors, we may better understand the motives of those with whom we negotiate and the extent to which they are truly willing to compromise. We often see the European Union as concerned with economics, social policy and politics, but in reality I suspect that it considers its priorities to be political, social and economic. That is one reason so many people in the United Kingdom chose to leave: they were against the notion, that underpins even the original treaty of Rome, of ever-closer political union.
The withdrawal agreement and political declaration have to be read together and in good faith. We have to trust the promises that are made in good faith and understand the need for compromise on both sides.
Looking to ourselves, we perhaps need to remind ourselves that the referendum was not a choice between good and evil or between ruin and redemption. My noble friend Lord Forsyth of Drumlean suggested at one point that the most reverend Primate the Archbishop of Canterbury had implied that all those who voted leave would go to hell. I do not believe that he suggested any such thing.
Lord Keen of Elie
I was going to say that, even if the most reverend Primate had contemplated such a thing, he would have left room for repentance.
If we can again trust and comprehend the art of compromise, we can tell the other place that the time has come where the alternatives are worse, that we must respect the decision of the people given in the referendum and that we must proceed with the withdrawal agreement.
I shall touch on some of the observations that were made during the course of this debate. The noble and learned Lord, Lord Thomas, referred to the attempts to secure mutual recognition in the context of judicial issues. I acknowledge that steps were taken to achieve that and that it has not yet been achieved.
The noble Baroness, Lady Thornton, referred to the idea of participation in European Union programmes going forward. That is something that is reflected in the political declaration.
The noble Earl, Lord Clancarty, and the noble Baroness, Lady Manningham-Buller, talked about the need for reciprocal mobility in the areas of science and research. Again, those are matters that will be the subject of negotiation going forward.
The withdrawal agreement is our means of leaving the EU; it is not the determination of our future relationship. That is why, in the context of the future of services, and in particular, financial services, the political declaration includes commitments to co-operation on regulatory and supervisory matters.
In relation to security, the noble Baroness, Lady Manningham-Buller, pointed out how that is preserved going forward, albeit there is the issue of police co-operation, which is so important, but which is maintained beyond the EU by reciprocal arrangements—for example, in the case of Norway and Iceland, which are not within the EU but still are able to maintain the sort of relationship that we would intend to have going forward. In all those areas, we are able going forward to contemplate a partnership with the European Union that will reflect our standards, our concerns, our security and our common interest in these areas.
Can I come on, though, to the Motion that has been tabled by the noble Baroness, Lady Smith? The noble Baroness, Lady Hayter of Kentish Town, touched upon that Motion. I will come on to that in a moment, but in doing so, she also referred to the fact that in recent times we have seen a devaluation in the pound that is without precedent since the war—she mentioned the war. I think she will find that Harold Wilson, with Denis Healey as his Chancellor, devalued the pound/dollar rate from four to 2.8—which was rather more severe than anything we have experienced in the recent past.
Can I come on—
Lord Keen of Elie
I think that noble Lords will find, if they check the timings, that I am within my time, but even if I am without, I am going to make an observation about the noble Baroness’s Motion.
May I turn to the Motion, in particular its third part? I remind noble Lords of the terms, because they are important. The Motion regrets that,
“withdrawal from the European Union on the terms set out in the Withdrawal Agreement and Political Declaration laid before Parliament would damage the future economic prosperity, internal security and global influence of the United Kingdom”.
Of course, it has been most carefully drafted by the noble Baroness and the ambiguity inherent in it is no doubt deliberate.
We have a situation in which some noble Lords take that third part of the Motion and say, “I think the withdrawal agreement is less than it should be. I believe the withdrawal agreement is not perfect and therefore I can support this part of the Motion. But of course I believe that the withdrawal agreement should be approved in the other place because it is the sensible way for us to go forward and leave the European Union”. There are those of your Lordships who have indicated that that is their understanding of the third part of the Motion. Yet there are others—and I note that the noble Lord, Lord McNally, is one of them—who take that third part of the Motion to say, “The withdrawal agreement is damaging in the following ways and as a consequence I do not support the idea that the House of Commons should approve it”. So there is a clear ambiguity built into the third part of the Motion, when what we really want to send to the House of Commons is a view about what it should do with the withdrawal agreement, not the result of an ambiguous Motion, which would draw some people into approving it because they believe that the withdrawal agreement should not be approved, and others to say, “The withdrawal agreement is less than perfect but it should be approved”. I ask all noble Lords to consider whether they want to be party to such an ambiguous statement.
It is in these circumstances that I thank noble Lords for their attention and invite them to consider carefully whether they are prepared to approve the Motion that is about to be moved.
Baroness Smith of Basildon
Baroness Smith of Basildon’s Motion10.01 pmMoved by That this House, while noting that it is for the House of Commons to determine the matter, considers that a no deal outcome to negotiations under Article 50(2) of the Treaty on European Union must be emphatically rejected, and regrets that withdrawal from the European Union on the terms set out in the Withdrawal Agreement and Political Declaration laid before Parliament would damage the future economic prosperity, internal security and global influence of the United Kingdom.
Baroness Smith of Basildon (Lab)
My Lords, we have had a long debate and I do not think there is any appetite for further debate. My Motion as it stands on the Order Paper, with its three points, is very clear. I beg to move.