European Union (Withdrawal Agreement) Bill

Baroness Deech Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Baroness Deech (CB)]

My Lords, we note, sadly, that the so-called Dubs amendment has been rejected, but I am sure that many of us feel, like me, that the noble Lord, Lord Dubs, will go down in history as a champion for refugee children and that he is an outstanding example of the contribution that can be made to British life by admitting a refugee child.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I express the Green group’s very strong disappointment about the decisions made earlier today in the other place. We sent them constructive amendments that aimed to protect those whom the Government themselves recognise as the most vulnerable people in society; to retain our close ties with the continent of Europe after we Brexit; to keep hard-won protections; and to recognise the established conventions of the power of the devolved institutions. We spent five days presenting powerful arguments for those amendments. I do not intend to rehearse any of them here. Rather, I present to the House three practical arguments for a way forward that the House might not currently be planning to take.

My first practical argument is about the past five days. We have all worked very hard. We have presented the arguments and argued the case. As the noble Baroness said, the noble Lord, Lord Dubs, has worked astonishingly hard and deserves the highest levels of credit. But we are potentially looking at the coming five years. I am not one who believes that we will suddenly see an outbreak of stability in Britain that means we will see five years of stable government—but it is possible that we will. So I ask your Lordships’ House to consider what it will be like if we spend five years working like we just have for the past five days and then get to the point again and again of not being listened to. Do we want simply to bow down and allow that to happen again and again?

My second practical argument is that we are not going against the Salisbury convention. Nothing here reflects what was in the election that was just held—the election in which 44% of people voted for a Tory Government and 56% of people did not.

My third practical suggestion is not to be what might be described as recalcitrant, but to pick one of these amendments to say to the Commons, “Please listen to the powerful arguments and think about the impact of your actions.” I am of course referring to the amendment that the noble Lord, Lord Dubs, put forward. We could hold the line on that one amendment. I ask noble Lords to think about what the impact of that might be. We are talking about people whom the Government agree are the most vulnerable children on the planet.

As we have heard in the debates, we know that lots of those children have made their way to Britain through irregular, dangerous and sometimes deadly means. A couple of years ago, I went to a memorial service for a young man who died in the back of a lorry. He had the right to come to Britain, but felt that he could not exercise that right and died as a result. I ask noble Lords to think about the message that us bowing down on the Dubs amendment will send to children in Europe today. They need to know that there are people in Britain, in the Houses of Parliament, who are on their side. So I ask your Lordships to consider our way forward, and to consider standing up for those children.

Brexit

Baroness Deech Excerpts

Saturday 19th October 2019 Lords Chamber

[Baroness Deech (CB)]

My Lords, even if the worst were to happen and the Commons were to reject this new deal, the relationship between this country and the 27 of the EU can never be the same again. There is no going back, and the demonstrators calling for a second referendum have to realise that Humpty Dumpty cannot be put together again. There has been too much betrayal of trust on both sides. But now there is a potential new start, on a new footing. I believe it is a healthier one; finally, the EU representatives have realised that we are serious and that there is a life that we can manage outside the EU. Our own democratic processes can return to normal and, no matter how rocky the road ahead, with possibly years of negotiations to come to finalise our new relationship, the boil will have been lanced.

Despite the years of discussion, it is odd that the EU has never asked itself why people in this country voted to leave. Remainers see everything through a prism of economics, no matter how dodgy the forecasts. But given the figures that we have heard, the reduction that we would all suffer if the green agenda were to go ahead swiftly—which would be a good thing—is greater. The losses that we would all suffer were Mr Corbyn to come to power would be infinitely greater than any sums mentioned this afternoon.

Even this past week, the failings in the nature of the Union that have caused people like me to reject association with it have come to the forefront again. Brutal repression of the Catalonian independence fighters in Spain has met with no objection from the EU because it does not want to antagonise Spain. There is blackmail by Turkey, which knows that it can let loose its penned-up migrants and cause chaos on the continent, and the return by elections in Poland of an illiberal Government, who have pledged to defy Europe over migrants, free media, judicial independence and sexual choice. As a member of the EU, we failed to prevent this sort of result, which is inevitable in its empire-building. We have failed to prevent the rise of extremism and the march of violence across Europe, and I hope that in future our voice in the UN and NATO will be raised against those developments without any inhibitions.

I welcome this deal, although I am only too well aware that it contains provisions which cause me great concern, such as any continued jurisdiction of the Court of Justice, a court that is not impartially structured, as we understand courts in this country. I hope that a UK judge will be included in it if it ever has cause to adjudicate on matters concerning this country. The deal before us is the most viable of any, given the self-inflicted wound of the Benn Act, which, had it not existed, would have given the Prime Minister a stronger hand. The Benn Act is a stain on the reputation of draftsmanship, with its glaring errors, which the Opposition were almost proud to overlook in their haste to tie the hands of our negotiators.

The opposition of the DUP is hard to understand and self-destructive. It is Northern Ireland that has erected the hardest of borders between itself and the UK through its backward stance on civil liberties such as abortion and same-sex marriage, through its continuing violence and by trying to thwart this deal. It has always had a special, differentiated place in the constitution—that is nothing new—and, given that the majority of Northern Ireland voted to remain, it ought to be pleased about its new special closeness to Europe. We have to ignore the DUP, prominent only because the previous Prime Minister needed its votes after the last election. It cannot be right that 1.8 million people hold the rest of Europe to ransom. It is undemocratic that the DUP should insist on having a veto over any changes in the arrangements, where the withdrawal agreement stipulates only a simple majority of the Assembly to the continuation of the protocol.

What a warning this is to the proponents of Scottish independence. Have they considered what sort of border they would have in that case with England? Have they ever wondered whether the EU 27 would welcome another secessionist state, given the lack of support for Catalonia?

Another referendum would be even more divisive, ill informed, probably rigged and less decisive; once you have more than one referendum, none has any abiding validity. If leave won again, as I believe it would, we would be in the same position, and if remain won that result would be treated by leavers in the same way as the remainers treated the result of the 2016 referendum. We have the opportunity to move forward in good order and repair relationships with the 27. We must take it today.

European Union (Withdrawal) (No. 6) Bill

Baroness Deech Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords—

[Baroness Deech (CB)]

My Lords—

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[Baroness Deech]

My Lords, I want to make two brief points, one of which is directly concerned with the Bill, from which we have been drifting somewhat. The speech by the noble Lord, Lord Hain, made a compelling case for the unification of Ireland—but that may be for another day—and that the effect of terrorism seems to have achieved what the terrorists wanted.

Turning to the Bill, it does not answer the question of what the situation will be if there is still no deal by the end of January. Will the extension be continued? Nothing in the Bill prevents the continuation of extensions, months after months, years after years—nothing at all. It is an eternal Bill, an ongoing loop of requests for extensions. It also does not answer the question of what our response will be if Europe grants an extension but subject to conditions. I am sure they will be tempted to add conditions to do with extra payments, losing votes, residence, immigration, tax and so on. There is no answer in the Bill at all.

The only bright thing I see in this Bill, which I regard otherwise as a moment of great national humiliation, is called the Kinnock amendment. I have not seen it in the Bill, but I have read that, somehow, an amendment put in by the MP Stephen Kinnock would allow Mrs May’s withdrawal agreement to return. I would put money on that agreement coming back, sooner or later, maybe with a tweak or two. In a fit, either of exhaustion or realism, that Bill will go through. It may be that history will say that there was a woman, St Theresa of Maidenhead, who laid down her political life to achieve an agreement. If that happens, much of the last three years will have been wasted. I am not the only one putting money on it coming back, as it may be the only solution.

The right reverend Prelate raised the notion of vision. People often talk about the vision of Britain after Brexit. I ask what the European vision is. If this had been put before the public three years ago, the outcome might have been different. I have been looking for a European vision for more than 25 years, since I decided that I did not want any part of it. The only answer has ever been more union, more Europe, marching on. Foreign policy has been raised. It has made us weaker. What is the European attitude towards Iran, Russia, China or the Middle East? We get division, hesitation and some countries that are beholden to Russia, one way or another, because of gas or their former existence under the Soviet shadow.

[Lord Hannay of Chiswick]

The noble Baroness asked some questions about the European attitude. The European attitude towards Iran is clear: it wishes to sustain the joint agreement, which stops Iran developing nuclear weapons, and to ease sanctions on Iran. Its position on Russia is clear: it intends to maintain sanctions against Russia, because of its interference in Ukraine and seizure of Crimea. The attitude towards China is clear: the European Union believes that many Chinese trade practices are wrong and need to change. On the Middle East, it is clear that we have supported a two-state solution ever since the noble Lord, Lord Carrington, persuaded the European Union to take it up in 1980. Is that enough?

[Baroness Deech]

The account of the noble Lord, Lord Hannay, expresses exactly the failure to which I refer. Not one of these so-called attitudes has paid off, in the least. Our foreign policy, on our own, has been and will in the future be much more successful.

[Noble Lords]

Oh!

[Baroness Deech]

There was genocide in Kosovo and nothing was done by Europe. Crimea was taken over and nothing was done by Europe. Europe is not paying its subventions to NATO.

Then we look further into Europe, which is much vaunted for its human rights. In Catalonia, strivers for independence are in prison. Poland lacks judicial independence and freedom of speech and refuses to take any except Christian migrants. Italy is chaotic. Greece has been driven into poverty, and there is youth unemployment in Spain and Portugal. In Germany and many other countries, the right wing is on the rise. In France, the gilets jaunes are an expression of a much deeper malaise. French security is an oxymoron, as is Belgian intelligence. I will be happy for Hansard to record my deep fears about the future of the European Union because empires—it was a Franco-German empire and is now just a German empire—end like this, with too much power in the middle and too much unhappiness on the periphery, and the push-back gives rise to the extremism which we see rising around Europe and which is lapping at our ankles now.

On that count, I think that our membership cannot but be something of a record of failure to stem what has happened in Europe. I wish the other 27 well in future, but if I were a citizen of one of the countries I have just mentioned, I would feel very fearful for my future welfare. I hope that we can get some answers from the Benches opposite about what the Bill will do to prevent the eternal burden of membership of the European Union.

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[Lord Mandelson]

Nor am I. I am not so sure that we should just push them all to one side as though they have absolutely no potential whatever. That is not my view. My view is that they are not realisable in the foreseeable future and that, in the meantime, we would put the Good Friday agreement and the peace process in Northern Ireland in great jeopardy in a way that would be unjustified and unforgivable. There is a very interesting discussion to be had about the future. It depends on certain modalities, technology and related approaches that have potential—I fully accept that—but they are not for now; in my view, they are for the future.

There is not only the obvious economic, business and commercial argument to be had concerning people’s jobs and livelihoods that are at stake; in my view, there is also a very strong democratic argument to which we should attach great importance in our consideration of this Bill. Quite simply, it is that there was no mandate from the 2016 referendum for a no-deal Brexit. I know that people will say that it was not explicitly ruled out, but to all intents and purposes it was ruled out by the fact that nobody referred to it, nobody explained it, nobody justified it and nobody set out the arguments for it. Not one of the advocates of the leave campaign ever entertained the idea that this would be the outcome of our leaving the European Union.

Such a possibility was almost literally airbrushed out of the picture by the promises that were made by the advocates of the leave campaign—that getting a deal would be “the easiest in history”. Plus, there was a later guarantee—I remember that “guarantee” was the word used by No. 10 in repeating what the then Brexit Secretary, David Davis, had said. The precise words used were that we would have the “exact same trade benefits” after we left the European Union. Not only has that promise of the easiest trade deal in history turned out to be wrong and unfulfillable but the exact same trade benefits will, as we know, be nothing of the kind. They cannot be anything of the kind. We will sustain frictionless trade that is exactly the same as the trade benefits that we have at the moment only if, at the very least, we stay in a customs union with the European Union and fully in the single market. That is the only way in which those promises that were made—that guarantee put forward by No. 10 —could possibly be redeemed, yet it is firmly, consistently and explicitly excluded by the Government.

[Baroness Deech]

I have a point of order about the non-envisioning of a no deal. Of course it was not raised at the time. First, Article 50 mandates that the EU shall negotiate a treaty, which it has failed to do. Secondly, it was never envisaged that the remainers would fight this all the way along for several years. Thirdly, the agreement that we talked about in a broad sense and was mentioned at the time was to do with trade. The actual withdrawal agreement, when we get to it, is about much more than trade. In that sense, it is perfectly understandable that there was no explicit discussion of no deal.

[Lord Mandelson]

I do not remember any of those intricacies, highways and byways being set out by anyone at the time or since—but, of course, the House will be interested in what the noble Baroness has to say.

The fact that any possibility of maintaining frictionless trade has been explicitly excluded by the Government is extremely serious for the manufacturing sector in this country and the long-term health of our economy. I do not see and cannot understand how, given the nature of just-in-time, sophisticated manufacturing supply chains and the way in which they operate between the UK and the continent, it will be possible for Japanese car companies or Airbus or any significant manufacturing enterprise to sustain production in Britain in the medium term.

That does not mean to say that they are all going to pull stumps, shut the doors and pull the shutters down and leave the day after tomorrow. Of course they are not, and any sense that they might is an absurd piece of hyperbole. However, over time—by which I mean between five and 10 years and probably on the shorter end of that spectrum—these great manufacturing companies are going to have to make new arrangements. They are going to have to move production in a way that enables them to secure continuity of their supply chains and the frictionless trade that they will no longer have when sustaining production in this country.

Let us not go back over all the customs union and single market arguments. I do not know what has happened to the Kinnock amendment and his and his colleagues’ advocacy of Norway. All I would say is that it would appear that there is no political possibility of those options being reintroduced or attracting and sustaining a majority, certainly in the other House. Let us acknowledge that they would in any case raise issues of regulatory dependence by this country on the European Union, while having no say in the making of those regulations.

I do not dismiss that. Having been on both sides of this as a UK Business Secretary and a member of the European Commission, I take rather seriously the idea that we in this country would simply be on the receiving end of laws and regulations made in Brussels over which we would have been able to express no view. There are real issues involved here and I acknowledge them.

In conclusion, the central point—and the right reverend Prelate the Bishop of Leeds made it earlier—is that the referendum in 2016 was an in/out one. It was an in-principle referendum. It was not about the how and the terms on which we would leave the European Union. No hint of those terms was spelled out between a soft and a hard Brexit, and of course there was absolutely no indication of leaving without n deal at all.

So now, as we find ourselves, at the behest of the new Prime Minister, hurtling towards a no-deal exit, I believe that the Government should accept that this really cannot and should not happen without the express approval either of Parliament or the public. I will wind up, if I may—it is nice to see the Government Front Bench intervening in a debate at long last. Here is my further point in conclusion. I do not believe that the express approval of the British public for how we leave the European Union can possibly be expressed by means of a general election.

European Union (Withdrawal) (No. 5) Bill

Baroness Deech Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Goldsmith]

The noble Lord is quite right that that is a very important point. It was raised at Second Reading that the Government felt strongly, and I understand why, that the royal prerogative should not be subject to at least inadvertent erosion. Of course it has been eroded in certain respects over the years; we do not need to go into what they are but they include treaty making and waging war.

I take from the noble Lord’s point this observation: one great benefit of the amendment proposed by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, is that it makes clear that the royal prerogative is being maintained. I want to avoid seeing that apparently contradicted by other provisions in the Bill.

I have one other observation to make. I said a few moments ago that there were certain things that could happen: the European Council might accept the proposal or it might come up with another one. However, there is a risk that there might be no agreement at all; that needs to be considered. We have had discussions with the Government. I look to the noble and learned Lord, Lord Callanan—I am sorry, the noble Lord. He should be noble and learned as he has had to deal with so much of this Bill already; we will see if we can arrange that. I anticipate that he will give an assurance that, in the event that there is no agreement, the matter will be brought to the other place as soon as possible. Indeed, we expect it to be brought there this week, otherwise it might simply be too late.

When the noble Lord comes to respond on this amendment, I look forward to hearing what he says about that, and I hope he will give us sufficient assurance that if there is in fact a failure to agree at the European Council meeting then the matter will come back to the other place, which will therefore be able to debate what should happen next. It should do so on an amendable Motion so that it can put forward and support its view on what should take place. I do not know whether it would be for the convenience of the House if the noble Lord could tell us now what he will be able to say but, if not, I look forward to hearing what he says when he comes to respond to the debate.

[Baroness Deech (CB)]

My Lords, I tabled Amendment 6.

[Lord Pannick]

It is not grouped with this one.

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[Baroness Deech]

I would be the mover of Amendment 6. I originally proposed with the Public Bill Office precisely the amendment that the noble and learned Lord, Lord Goldsmith, tabled. I am sorry that we were not able to communicate about it. However, it shows how wise it was for this House to have had the weekend to think about things. Not only has the temperature cooled a bit but it has given us the chance to read two very important reports that were hastily brought out over the weekend. I congratulate the members of the two Select Committees—the Constitution Committee and the Delegated Powers and Regulatory Reform Committee—and all those who worked to achieve this on getting the reports published. They raised an important issue and, to some extent, answered my question. My amendment would have been a probing amendment.

I tabled this amendment for clarification. After we have debated all the amendments, it will demonstrate even further just how toothless and pointless this Bill is. I was minded to put this amendment down for the following reason, which has also been suggested by the noble and learned Lord, Lord Goldsmith. Let us suppose that the Prime Minister picks up the phone to Brussels, or goes there, and it says that it will give an extension for however many months, provided we pay more, or enter into discussions with Spain about Gibraltar, for example. I am glad to see the return of the royal prerogative because I assume that that will mean that she can simply say no and put the receiver down. As drafted, the Bill concerns only the date; it has nothing about conditions. The date may well be inextricably mixed up with conditions.

As things stand, there would be nothing to get either House involved, or to stop the Prime Minister rejecting or accepting such a condition. Moreover, if you look at the drafting—of course, you draft in haste and repent at leisure—Clause 1(2) requires her only to seek an extension, not to achieve or accept it, or anything like that. Going back to my phone call metaphor, if she seeks an extension, and picks up the phone to Monsieur Barnier and says whatever, and he says no or she does not like what he says, she puts the phone down—end of. I maintain that this Bill does not wholly achieve what it sets out to do, which is to stop no deal, but I am happy to see a return of the royal prerogative. I agree with the noble and learned Lord, Lord Goldsmith, that those two final clauses should be removed because they simply confuse the issue.

How wise we were to wait for those reports. The one from the Constitution Committee explains exactly what I have said. Paragraph 5(c) says:

“The European Council might agree to the extension but subject to certain conditions (e.g. UK participation in elections to the European Parliament)”.


I add in brackets that our human rights will be broken if we are still members of the EU and cannot vote—there was a case on this a few years ago. The report continues:

“If such a situation were to arise, the Bill would have no further application—that is, it would not impose any further duties on the Prime Minister nor make any relevant further provision”.


I am glad to hear that. In other words, if Monsieur Barnier says we have to enter into talks with Spain about Gibraltar, the Prime Minister can put down the phone and say no. We will come to the other report later in this discussion.

In sum, no deal is not blocked by this Bill, but the House of Lords is relegated, as has happened quite often, I am afraid, in all our interesting and productive debates about withdrawal. We do not get reported in the media and we are completely sidelined from future decisions by this Bill. If the amendment from the noble and learned Lord, Lord Goldsmith, is accepted, then mine will of course be withdrawn, but I am glad to get this clarification on the record.

[Lord Forsyth of Drumlean]

My Lords, I am rather confused as to what is going on here. Who is answering these important points?

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[Lord Hamilton of Epsom]

I agree, nobody knows. Let us hypothesise that she cannot go beyond that date. She goes to Brussels and says: “I would like to extend until the end of June”. Suppose that Brussels says: “No, we are frightfully sorry but we have agreed two dates with you already. One is in the context of no agreement and the other is in the context of the agreement being agreed by Parliament. We are not prepared to move from that”. I presume that the noble and learned Lord, Lord Goldsmith, will be answering on these amendments —I suspect the noble Lord, Lord Robertson, does not feel that responsible for this Bill, having taken it over from somebody else. What happens if the EU does not move from the two dates that it has already agreed, therefore still leaving us in the position where the Prime Minister will come back on Thursday and say, “I can get no agreement from the EU to change the dates it has already given us”? How in those circumstances will we not come out with no deal on Friday?

[Baroness Deech]

My Lords, as I mentioned before, there is nothing in this Bill specifically to stop no deal. It requires the Prime Minister to seek and seek again. The root of the trouble is that for more than a hundred years we have observed the separation of powers in our constitution. The noble Lord, Lord Norton, is one of the greatest experts on this—I think he is not in his place, but if he were he would probably say that that separation is sometimes not exact. However, this Bill is a very good illustration of why it is not a good idea to mix up the powers of the Executive and the legislature. I would like to hear from whoever is the surrogate parent of this odd little embryo quite how it will prevent no deal. An abortion?

[Lord Forsyth of Drumlean]

Will the noble Baroness send a copy of her excellent contribution just now to the Minister for Children, who appeared on Radio 4 on Saturday morning and told an astonished nation that it was now illegal for us to leave without a deal?

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[Baroness Ludford]

I have talked about the specific context. If we get to the end of this week, it would be absurd for us to be prevented from preventing no deal because of the need for an affirmative resolution. That is a very specific scenario which justifies the negative procedure in this case.

[Baroness Deech]

My Lords, a few days ago, the noble Baroness, Lady Hayter, while hurrying us along, said that she was prepared to sit right through the night and that breakfast would be provided. Our Easter Recess has been removed for the time being. I and, I am sure, all noble Lords are quite prepared to sit on Thursday, Friday, Saturday or whatever it takes.

[A noble Lord]

I am not.

[Baroness Deech]

It does not matter if some of us are not prepared to do so; some of us are.

Although I am not good at procedure, I hesitate to reject the report of the committee which contains Members who are luminaries in procedure and law. I cite my noble friend Lord Lisvane, the noble Lord, Lord Thomas of Gresford, and others. They must have met over the weekend and they have turned out this report. We cannot just dismiss it. What is our discomfort or the lack of a day or two’s break compared with the terrific constitutional and future issues at stake?

European Union (Withdrawal) (No. 5) Bill

Baroness Deech Excerpts

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Baroness Deech (CB)]

My Lords, not only is the procedure relating to this Bill unacceptable and unconventional, but the Bill too has its faults. It is unnecessary because the Prime Minister has said that she will seek a delay, and this ties her hands. It makes us subservient to European Union timing. Clause 1(6) and (7) give any European Union extension priority over what we might want. According to the Bill, if some hypothetical date that the EU puts forward is accepted, there will be a Motion in the Commons taking the form of subsection (2). That subsection has dots where a date would be; it does not refer to subsection (3).

The other thing that puzzles me is the wording in Clause 1(2). It says,

“for the purposes of section 1 of the European Union (Withdrawal) Act 2019”.

I looked it up, and there is no such Act. After much puzzling, I decided that this was a reference to the Bill, but the Bill is called the European Union (Withdrawal) (No. 5) Bill, and presumably, if it becomes an Act, it will be the European Union (Withdrawal) (No. 5) Act. Therefore, I hope that that can be corrected, or maybe there is already a European Union (Withdrawal) Act 2019 that I am unaware of. I found that reference puzzling and I hope that the Minister will be able to clarify it or make sure that it is corrected.

I also wonder why this House would not be involved if such a Motion for an extension were passed. Why would only the Commons be involved? I think that subsections (6) and (7) of Clause 1 should be deleted. I do not see why any priority should be given to European Union timings. It should be for our Prime Minister to say that she has received a suggestion from the European Union about certain dates and that is what she wants. I do not see why the European Union should make that decision. I also wonder what European Union procedures there are to make those dates firm. We have already had extension dates bounced on us, and we have been told that they are part of an international treaty. I do not know whether we are part of that, how it came about or whether we ever agreed to it.

The root of the trouble, in retrospect, is the Miller case, where a random member of the public who could afford it brought a case to ensure that Parliament was involved in triggering Article 50. I was glad to hear that the noble Lord, Lord Pannick, has now found a good use for the royal prerogative and suggests that Mrs May be allowed to use that in questions relating to the date. However, it may be that in years to come the diminution of the royal prerogative by the Miller case comes to be regretted.

It is also the case that there are problems with Article 50. As I said on Twitter, this is:

“A clue to the source of Brexit trouble”,


and these are not my words but the words of Professor Collier, who wrote in the New Statesman a week or two ago:

“Article 50 was designed (by a clever British civil servant of yesteryear) so as to strip any country wanting to leave of all negotiating power”.


I hope that in years to come the defects in Article 50 will be recognised.

The reason why we are in this trouble is that from day one those who voted remain, or many of them, have done what they can to block an orderly exit. Indeed, Brexiteers in the other House were misguided in refusing to pass the withdrawal agreement—not that I hold any candle for it but I do not think there was anything better, and we would not be in the situation if they had voted for it. I can therefore conclude only that the overriding motive of those who are pushing this Bill is to avoid Brexit or to have a softer Brexit. The noble Lord, Lord Finkelstein, helpfully spelled it out in the Times a couple of days ago in an article that he said was addressed to the European authorities. This is what to do, he said to them in his article, if you want to stop Brexit: give Britain a delay. Give it more, more and more delay. Do not impose conditions, just delay and delay, and the whole thing will eventually dribble away in the sand. That is what the noble Lord said.

On the other hand, there is the question of no deal. There might be chaos, although we do not know, but two particular advantages of no deal have emerged recently. First, suddenly Mr Varadkar is talking about sensible ways to get around the Irish hard border issue. Suddenly he has come forward with what he says might be acceptable technical ways to do this—a miracle. Secondly, I think no deal would force the European Union to negotiate. It would jump-start it into negotiating, which is its duty under Article 50 and which it has neglected. All the EU has said is, “No, we will not reopen the withdrawal agreement”, and, “No, we will not change anything”. So one wonders really what the delay is for. If Europe will not reopen the withdrawal agreement, why are we delaying? It will say to us, “What’s your new plan for the future?”. Even if we were to say, which I hope we will not, “A customs union”, what guarantee is there that Europe would agree to it? Probably it will just say no to anything that we ask for so that the delay goes on and on. An extension as mandated in the Bill would not end the possibility of no deal, because if no deal happens because there is no deal then no deal is what we will get. So I do not see that there is any reason for the delay.

Lastly, on the notion of a second referendum and people changing their minds, I rather wonder whether remainers have changed their mind. What did they think they were voting for two or three years ago? Were they voting for what we see now across Europe? Were they voting for the collapse of French security? Were they voting for the high level of Belgian intelligence? Were they voting to see more fiscal indiscipline within Italy, higher unemployment in Greece and less philanthropy and sharing of burdens by Germany? Were they voting to see more authoritarianism in Hungary, less respect for the rule of law in Poland or increasing expenditure, sometimes unaccounted for, in Brussels? Were they voting to see a Europe that is unwilling to support NATO as it should? I hope that they will think again. Facts have indeed changed over the last two years, for the worse.

I hope the Minister will respond to my points about drafting and reply as to why we need the Bill at all.

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[Lord Goldsmith (Lab)]

My Lords, I am happy to support the Bill from these Benches, and I thank my noble friend Lord Rooker for bringing it to this House. I share the view that has been expressed that it would have been better if the Government had brought it, but we are where we are. I look forward to seeing it pass.

The purpose of the Bill was expressed quite shortly by my right honourable friend Yvette Cooper in the other place. I will quote what she said, which seems so right:

“The Bill simply provides for a simple, practical and transparent process to underpin the Prime Minister’s plan. It ensures that the extension has the support of the House of Commons, but also that we keep the parliamentary safeguard in place… She has recognised that she cannot implement anything in only nine days, which is why the extension is needed. This is a hugely important Bill”.—[Official Report, Commons, 3/4/19; col. 1135.]


I agree with that. It was described by the noble Lord, Lord Anderson of Ipswich, as a modest Bill. Modest it may be and, in certain respects, that is much to its credit, but it is an important Bill because of the issues that so many noble Lords have spoken about this evening. As the noble Lord, Lord Cormack, said:

“It was created in a vacuum, and the vacuum was created by a lack of leadership”,


because of uncertain times.

In listening to this debate, three points came across to me. The first was objection to the Bill from those who either view a no-deal Brexit with insouciance or actually welcome it. A number of noble Lords spoke in that way, such as the noble Lord, Lord Howard, who knows the high respect in which I hold him, the noble Lord, Lord Willoughby de Broke, and my noble friend Lord Howarth of Newport, for whom I also have great respect. I profoundly disagree with their view that a no-deal Brexit is not a great problem.

This evening we heard from the noble Lord, Lord Stern of Brentford, important evidence-based concerns about what a no-deal Brexit would do. Other noble Lords have spoken about that in detail, and I want to add the reference that has already been made, although belatedly, to what Sir Mark Sedwill has said about the risks. It is not, as the noble Lord, Lord Fairfax of Cameron, described it, “a little short-term inconvenience”. Those are the merits of the principal point that has been debated.

The noble Baroness, Lady Wheatcroft, rightly described the problem not so much as not trusting the Prime Minister, but not trusting the circumstances in which she finds herself and the people she finds around her. It is therefore an insurance policy. It may well be that, without this, the Prime Minister is able to achieve what she now wants, but it is important to have an insurance policy, as my noble friend Lord Liddle described it.

That took up most of the debate this evening. The second main point was the question of constitutionality. The noble Lord, Lord Norton of Louth, referred to that. I was privileged to sit on the Constitution Committee when he chaired it, so I always listen to what he says with great respect. The problem is that we are in, as my noble friend Lord Liddle said, perhaps the gravest crisis since the Second World War and exceptional circumstances require exceptional measures. They are exceptional in a number of respects, not just because of the gravity of the situation with which we are faced but because of the apparent lack of ability of the present Government to solve it. That has led to the other place taking the view that it must step in to help resolve the problem.

There is a need for the Bill. It is important that we respect the other place, which has sent it to us. We will be giving it scrutiny, and I am glad that we will now continue this debate in Committee next week, although I have something to say about the critical need to get it done on Monday.

I am also glad, as the noble Lord, Lord Cormack, said, that we have been able to have this Second Reading debate in a much better atmosphere than we had earlier in the day. It was an unpleasant afternoon for all of us. The comments made about Sir Oliver Letwin were uncalled for. He did not deserve them, given what he has been trying to do in the interests of the country, having been a loyal servant of the public. Although he did not come up so much in this debate, I also mention Dominic Grieve, who was my shadow when I was Attorney-General. A more honourable and honest man I do not know. I agree with the noble Lord, Lord Cormack, that it was a pleasure to see the noble Lord, Lord Spicer, back in his place.

A number of noble Lords, including the noble Lords, Lord Howell of Guildford and Lord Cormack, and the noble Baroness, Lady Noakes, referred to the importance of compromise. The Bill at least provides an opportunity for that to take place. Whether it happens is another matter.

I am very conscious that the House has been debating this, one way or another, for a number of hours, so I will wind up quite quickly. On the detail of the Bill, the noble Lord, Lord Pannick, raised the most important point about the royal prerogative. Following on what the Leader of the House said, the noble Earl, Lord Cathcart, raised the danger of the Prime Minister finding herself in a situation where something is offered which she would want to accept but which is not actually covered by the Motion that has been passed by the House. Does she have to come back? That ought to be looked at and, for our part, we will look at it before this matter comes back next week.

I want to underline, and end on, the importance of getting this done. Noble Lords will be aware, because they will all have read the Bill carefully, of the way it works. The day after Royal Assent is given, a Motion needs to be presented to the House of Commons—which it might or might not accept—setting out the time for the extension. That gives rise to two issues. One is that it is proposed by the Government—I would anticipate, by the Prime Minister—for the other place to consider. It is not the European Union setting out the timetable, but the Prime Minister must be given the date in time to pass it to the members of the European Council so that they can consider it before they meet on Wednesday. They will not thank anybody, I understand, if they are given it with very short notice. It is obviously an important decision for them and they will want to discuss it among themselves. That is why we must reach the position on Monday where we have dealt with all amendments in time for the other place to also deal with them that day and Royal Assent be given, so that the following day, Tuesday—only one day before the Council meeting—a decision can be reached on the timing.

A number of noble Lords have expressed happiness that we have been able to reach an agreement so that this does not go through the night tonight, but that was on the basis that we will conclude this on Monday—the Chief Whip talked about 8 pm. I hope all noble Lords will be able to co-operate on that. We have our work cut out, but not if we do it efficiently. At the end of the day it remains quite a straightforward and simple Bill, which we will be supporting.

[Baroness Deech]

The noble and learned Lord referred to this as the greatest crisis since the Second World War. Briefly, that brought to mind the famous case of Liversidge v Anderson, the facts of which I need not remind him of. There were emergency powers and the majority of the court held, “Yes, that’s all right, let’s lock this chap up”. The judgment we remember now, and it was famous even then, was the judgment of Lord Atkin, who said:

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace”.


We stick to the principles we have always had. His reference to Second World War reminded me of that: when you have an emergency—and I would not compare this with the Second World War—it is all the more important to use the proper constitutional principles.

[Lord Goldsmith]

I am grateful to the noble Baroness. I remember that case very well, of course, though I did not have the pleasure of being one of her constitutional class. Of course, what the House of Lords decided in that case was that it was not for individual Ministers to make decisions; that is what the case was about. It was about control of executive power: they were not to make determinations themselves. In this case, the Bill seeks to give primacy to the House of Commons to enable its decision, perhaps in the face of the wishes of the Executive, to be effected.

Brexit

Baroness Deech Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Deech (CB)]

I feel in a very lonely position this evening. I have tried hard to be persuaded by the arguments of the remainers, but my head and my heart will not go that way.

What has been the role of this House in the Brexit process for the past two years? I think the history books will not look upon us favourably. It is true that we have played our traditional constructive part in amending legislation, but our collective wisdom should have offered more inclusive solutions than has been the case. Instead, the great majority of our members have tried to belittle the sentiments of those who voted leave. Repeatedly, we have been told that people did not vote to make themselves poorer. That sentiment reveals nothing about the leavers, but it does show that remainers see the issues through an economic perspective only, and that retaining and protecting one’s investments are the only possible values. This should not be so.

It is not only in this country that voters have seen the profound failings of the EU, and are trying to stem the flow of those failures into their own lives. Right across Europe the populist and nationalist movements are on the rise. Southern states are left to stagnate, with recession and youth unemployment. The former Communist states are rejecting the orders from Brussels about borders, environment and migrants. Minorities are in fear for their lives. Germany alone benefits economically, although even that is stalling.

The wealthier EU states do not help the poorer: they leave them to flounder. There are no shared values anymore. On the contrary, human rights are being devalued as never before since the end of the Second World War. The central Government in Brussels grow ever more distant from those they purport to govern. France is in the grip of riots. The German AfD has representatives in the Reichstag. Hungary, Italy, Austria, the Czech Republic, Estonia, Sweden, the Netherlands and Poland now have the far right well represented in government. No wonder the EU is fearful for the elections in May, which are likely to increase the representation of extremists.

Leavers have rejected, in a once-in-a-generation opportunity, the failings of past empires, whether Austro-Hungarian, British, Roman, the Soviet Union’s, Yugoslavian, American, French or Ottoman. Starting with the best of intentions of bringing security and peace to disparate peoples, they inevitably brought repression and diktats as soon as local preferences were expressed. The EU is simply a return to Europe’s imperial past, and it is not even able to defend itself but is reliant on NATO and in thrall to Russia.

This top-down governance lacks the elements of loyalty and shared burdens that characterise national states. Over the decades since 1945, these states have spent more and more of their budgets on helping their own citizens in times of hardship, and yet somehow those who benefit from the EU have managed to create a mindset that sees the union of European states as the only legitimate liberal opinion that one may hold. Voting leave was described as an unforgivable act of dissent. It had to be described as a protest vote, a vote by the uneducated and aged and a vote that has to be repressed.

What is going on now to stop leave is another manifestation of the intolerance that faces political and religious speech regarded as deviating from the acceptable view. This is where the hatred and bigotry arise again, against those who do not accept the universalist ideologies, or as a reaction to legitimate national expression being put down. Individual freedom throughout history has been better protected in independent states than in conglomerations. In short, as the EU undermines national loyalty, it creates a fertile soil for extremism and hatred. Democracy cannot flourish eventually in a superstate, as history has shown. It is therefore legitimate and far sighted to seek to retain our independent democracy and not risk further exposure to the forces that may yet bring an end to the latest dream of empire.

What advice can we give our colleagues in the other place? Certainly not to take control themselves. Not only is that a constitutional outrage and a very dangerous precedent for future majority governments, but there is no clear majority in the Commons for any particular path. It is not possible for the EU 27 to deal with the Commons—or will they be represented by Speaker Bercow? One begins to see why there is sense in the royal prerogative in dealing with foreign affairs, as was almost universally understood until the Supreme Court judgment in Miller concerning Article 50. Moreover, one can be sure that were MPs to come up with one solution commanding a majority and present it to Brussels, it would be turned down, for the clear aim of the EU has been from the outset to prevent our leaving, or make it so unpleasant that no other state will ever dare to rebel against the centralised powers. We did not vote to be humiliated, but that is what has happened, and we should never again entrust our sovereignty to other states. That is the lesson.

We are left with three outcomes: revoking Article 50 and/or a second referendum, no deal and the May deal. Revocation would have no democratic basis. On the contrary, it would be a betrayal of the universal franchise and especially the democratic rights of the public. It would be a disfranchisement by those who consider themselves best able to govern of those for whom they are expressing contempt, an attitude that should have ended more than 100 years ago. A second referendum would quite likely, in my view, be won by leave again, on the basis of not wanting to be bullied. Moreover, given the accusations of ignorance last time, are we certain that all the electorate are on top of the backstop and all the other provisions of the agreement? If leave won again, we would have the same practical problems. If remain won, that result would be rejected with the same strength as leave is rejected now.

What about no deal? Despite the Prime Minister’s statement, I maintain that legally it is still on the table. Unless Parliament changes primary legislation, it is still there. None the less, despite the allegations of chaos, I believe we are more prepared for the logic of no deal than is generally put about. No deal—that is, trading under WTO terms—is what we may well get on 29 March. It has advantages, it has disadvantages. It is not popular, but it is feasible and logical. It would jump-start the EU 27 into proper negotiation.

What, then, of the Prime Minister’s deal? The withdrawal agreement is not a treaty for all time. The weight of legal opinion, which is at least sufficient to defend a legal challenge, is that Articles 60 and 62 of the Vienna Convention on the Law of Treaties allow termination of a treaty for a material breach by one side of its obligations or a fundamental change of circumstances. For once, I have my pupil, more brilliant than I, the noble Lord, Lord Pannick, on my side. Should the UK come to the conclusion that the EU was keeping it locked in a backstop unreasonably, it could claim a material breach of the withdrawal agreement. Both parties will be obliged to work towards a specific result— namely, to conclude an agreement that supersedes the protocol by the end of 2020. Unreasonable delays by the EU, or negotiating in a manner that does not take account of the objectives of the UK would be a breach of the principle of good faith.

A permanent backstop would undermine the Good Friday agreement. If the EU threatened that, it would be inconsistent with its best endeavours and good-faith duties. If the backstop became permanent by default, without the consent of the people of Northern Ireland, this would amount to a fundamental change of circumstances under Article 62. Article 1(4) of the protocol expressly states that the withdrawal agreement is meant to be temporary. If it became permanent, this would be a fundamental change, and the longer it continues, and the worse the consequences for Northern Ireland, the stronger the legal argument that Article 62 would apply. The UK has withdrawn unilaterally from 52 treaties since 1988. All these were multilateral treaties. We cannot, therefore, be bound permanently in international law by an agreement if one of its terms is that it does not establish a permanent relationship and is meant to be temporary. The fears surrounding this are ill founded.

Bad though the May agreement is, if I were an MP I would probably hold my nose and vote for it. I urge the other House to pass this deal. If it does not, the plans of the venal and the apparatchiks in Brussels are to delay Brexit for year after year until it vanishes, and there will be no escape from the downward spiral of the EU. Brexit is within our grasp—just a few more votes, and we have it. Otherwise, it is gone for ever, with our sovereignty and our respect for individual freedoms.

Further Discussions with the European Union under Article 50 of the Treaty on European Union

Baroness Deech Excerpts

Wednesday 27th February 2019 Lords Chamber

[Baroness Deech (CB)]

Since the noble Baroness has mentioned morality, I raise a question with her: does morality lie with no deal? Brussels asked us what we wanted and we said we wanted a change to the border situation—a way out of the backstop—and it said no. It is not this Government who have led us to no deal—it is Brussels. When it comes to moral leadership, I have no idea what the leader of her party in the House of Commons has wanted for the last two years—it is not clear to the average observer. Leaving aside, for a moment, the moral swamp going on there, we have no idea what his position is.

[Baroness Hayter of Kentish Town]

We do. I made it clear yesterday—I am not sure whether the noble Baroness was in her place when I spoke to the House—that no deal is our choice because if we amend the deal on the table, we can get one. It is our choice, not that of the other side.

The costs of no deal, as I said, have been set out. The worries of the CBI, the IoD and of all the others have been made pretty clear to the Government—I am sure they have been if they are making them clear to me—and I wonder sometimes whether Ministers read their own papers. Yesterday, the Government’s own paper predicted that the economy would be between 6% and 9% smaller in the long term in a no-deal scenario compared with today’s arrangements, with the north-east losing out more than anywhere else—I am sure the Minister noticed. I thought that that, at least, would have attracted his attention.

EU Withdrawal

Baroness Deech Excerpts

Wednesday 13th February 2019 Lords Chamber

[Baroness Deech (CB)]

My Lords, I wrote this speech with the intention of being optimistic and constructive, and I have just about managed to hold on to that.

I hope by now that the House has given up on the notion that people do not know what is good for them and that we must rescue them from themselves. Those days are long since gone. Surely the European Union is not going to allege that it has to follow rules in all circumstances and cannot be flexible. Look at the appointment of Mr Selmayr, as the noble Viscount, Lord Ridley, said. Look at the rejection of migrant quotas across the Union, the building of fences between countries to keep out migrants and, above all, Mr Tusk’s Poland, which is breaking the rules on the environment, independence of the judiciary, independence of the press and without any sanction from the EU because Hungary is backing up Poland.

The exchange of correspondence between the Prime Minister and Mr Corbyn should not be taken at face value, although it cannot be bad that they are at last in contact over our exit from the EU. I surmise that Mr Corbyn wants the UK to leave the European Union because continued membership might stymie some of the ideas he has for his potential premiership—for example, state aid rules. He admitted voting against membership in 1975; he opposed the Maastricht treaty and called it a bankers’ Europe; and he opposed the Lisbon treaty. I never thought I would say this but I agree with Jeremy. I believe that his letter is designed not to block Brexit but to ensure that if things go wrong he cannot be held responsible. His letter might also serve to undermine the Prime Minister’s negotiations in Brussels and divide the Cabinet. To these ends, he appears even to have abandoned his insistence on an end to free immigration. I do not think that this will hold.

The continuing uncertainty over the backstop should be seen as artificial, for it is clear that a border that satisfies safeguarding the territory of the Union is feasible. The Republic can work with the EU over the form. A customs union is not necessarily the answer, given the extensive delays on the Turkish-Bulgarian border. Nor should we be held to ransom by threats of renewed terrorism. The UK has always remained firm about not changing its policies in response to violence. I suspect the prolongation of dispute is part of a campaign by Ireland to achieve unification. Like it or not, if no technical solution to the border is achieved, or if we leave with no deal, the only solution in the end will be Irish unification, not now as dread a subject as it once was.

As we see the other place riding roughshod over conventions and proving that the Commons cannot and should not take control because it is as divided as the Government’s route to exit has ever been, and by displaying those divisions to the world, they are allowing Brussels to say that it does not know what we want and enabling it to ignore the obligation in Article 50 that,

“the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.

The Union has shirked its responsibility. Should we indulge it by extending Article 50? In this I rely on the opinion of Martin Howe QC, who has examined the legalities. It has been too readily assumed, even here this evening, that we have but to ask for an extension and it will be granted, or that a legal duty should be placed on the PM to secure this. It is not, however, ours for the asking. Under Article 50, the European Council, with unanimous agreement, is empowered to grant this. It would take into consideration the fact that there is a European parliamentary election due in May. Any extension beyond the summer would mean the UK’s inclusion in the elections, even though our seats have already been reallocated, and our remaining there for the next five years. A short extension of a few weeks would be pointless as the European Parliament, which is charged with consenting to the withdrawal agreement, is to be dissolved on 18 April. In the case of a longer extension, given that the consent of each European state would be required, it places each of them in a strong position to demand concessions and impose conditions on their consent. The Spanish will be thinking about Gibraltar, the French about fishing, and the Germans about getting larger contributions from us to the EU budget to alleviate their increased share. In sum, to demand an extension drastically weakens our negotiating position, opens us to blackmail and takes the pressure off the European Union to fulfil its obligation under Article 50. Moreover, this and other amendments are ignoring our constitution and have changed the status of the Speaker in the other place. The way in which these amendments are being handled is storing up problems for future Governments and legislation that opposition and rebellious government MPs do not like.

All those who want to take hard Brexit off the table—if ever there was a meaningless concept, that is one—seem to forget there is a perfectly sensible alternative, namely voting for the May agreement, even if it is not ideal. As I have said more than once in the past two years, we are one against 27 and it was bound to be the case that if the Prime Minister came back with a deal that was not liked by Parliament, and had to go back to the 27, they were unlikely to offer her a better one. Therefore, if we vote on the Motion tabled by the noble Baroness, Lady Smith, it will not be a meaningful vote but meaningless. We cannot take no deal off the table unless there is an alternative. We cannot force the Government to comply with her wishes by the end of this month.

On treaties, noting a few days ago that France and Germany have re-entered another pact, I was reminded of what General de Gaulle said—in terms, I hasten to add, that would not be acceptable today—about the Franco-German treaty of 1963:

“Treaties are like roses and young girls. They last while they last”.

I turn to the escape mechanism I have mentioned before, which is backed by several international lawyers, including Professor Verdirame of KCL, and former First Parliamentary Counsel Sir Stephen Laws, but not by all. Article 56 of the Vienna Convention on the Law of Treaties provides for withdrawal if, inter alia, it is implied by the nature of the treaty. Since the wording of the protocol is clear that the objective of the withdrawal agreement is not to establish a permanent relationship between the Union and the UK, but is meant to be temporary, this is indeed implied. The protocol specifies a best endeavours obligation to conclude an agreement that supersedes the protocol in whole or in part.

Best endeavours must surely be in doubt, bearing in mind the comments of Donald Tusk recently and the plain wish of the European Union to keep us in a permanent union. If the EU in future proceeds in a way that is intended to make the protocol permanent, one can conclude that the best endeavours obligation is being breached, which is a ground for withdrawal under Article 60 of the Vienna convention. The arbitration provisions in Article 170 of the withdrawal agreement do not remove the Vienna convention rights. The fact that the most distinguished lawyers are not in agreement over this gives one hope. This sort of disagreement lays the foundation for prolonged and serious litigation in the International Court of Justice, which will be very lucrative for our legal representatives and might be what is needed to jolt the European Union into settlement and action, so I encourage the Minister to proceed on the basis that the Vienna convention applies. After all, if one can leave the European Union on the application of Article 50, surely an agreement of lesser scope cannot be permanent and without external determination, so my guess is that round about 28 March a version of Mrs May’s agreement will pass and in future we will have to sort out the adverse consequences, if any.

Brexit: Preparations and Negotiations

Baroness Deech Excerpts

Monday 23rd July 2018 Lords Chamber

[Baroness Deech (CB)]

My Lords, if the people had been given a vote on the Maastricht treaty or the Lisbon treaty, we would not be where we are now. If Mrs Merkel had made some concessions to David Cameron a few years ago, the referendum might well have gone the other way. When her epitaph comes to be written, I think it may well conclude that she was the woman who started the break-up of the European Union.

The European ideal has collapsed, and that is why they cannot negotiate and why they behave so irrationally rigidly. Remainers wanted the status quo and were averse to any cost of complexity, and they cared about their personal finances. I respect that. On a higher level, they thought that they had bought into an EU of collaboration and democracy, and here I agree with the noble Lord, Lord McNally. However, there have been many references to changes in the past two years: the European ideal has gone.

The extreme right prejudices and nationalism that the EU was invented to cover up and prevent have vanquished the EU structures. The extreme right has risen in France, Sweden, Finland, Slovakia, Slovenia and Germany; Italy has called for the Roma to be registered; Austria has called for the Jews to be registered; Poland has attacked the judiciary, the press and the environment, and, with Hungary, refused migrants; Russia’s leverage over energy has brought silence; Spain punishes Catalonia; Greece is reduced to penury; Cyprus bank accounts were threatened; the fences are going up and border controls have reappeared; and Schengen is crumbling like a picked cherry.

Mrs Merkel, who bears much responsibility for the collapse of belief in the EU dream, is no longer stable, and yet those who would remain are presumably committed to calling for more Europe, less national identity, a bigger budget, an army, the spread of the euro and the abolition of our seat on the Security Council. And what in the future? We do not know what the future of the EU is.

It is therefore essential to get out as cleanly as possible, for there is nothing we can do to alter the trend—and it went that way under our watch. If the EU accepts Mrs May’s latest compromise—a bad one—so be it, but already it has said it will not. The squabbling of MPs over the Trade Bill, which will no doubt be replicated here, is a waste of time. There is no rationale behind the four freedoms, no reason why there should not be picking and choosing, a luxury the eurocrats give themselves but not to the leaving state. We might reasonably require free trade, protection of citizens, mutual recognition of joint institutions, professional and commercial services, nothing less. A second referendum—a third, actually—would destroy the integrity of all referendums. It would be tainted by resentment and be no more mandatory in result than a fourth or a fifth.

The EU has failed to comply with Article 50, which requires that the Union shall negotiate and conclude an agreement with the leaving state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. If the UK was wholly unreasonable and unyielding, one might say that the failure was due to the UK rather than the EU, but the EU has called on the UK to make offers and then rejected them seriatim. I therefore acquit the Government of not doing their best.

The EU has made no proposals to protect UK citizens living abroad and will find itself in breach of the European Convention on Human Rights if it does not treat them the same as its own citizens, mutatis mutandis. There is no protection of the integrity of the UK in its proposals. It threatens to punish us, interferes in domestic affairs such as the registration of EU citizens living here and demands arbitrary sums with nothing in return. It has seized on the Irish border as an impediment to our leaving. The Republic of Ireland no doubt sees the prize of unification with the north on the horizon.

There is little to fear in no deal because there are underlying and older treaties to rescue flights and trade. Any visa requirements will hurt the European tourist industry. Indeed, the 27 will come off worse if there is no deal, and that is what we should be saying to them. Their financial services and their tourist industries, to take two examples, will go into meltdown if they do not allow free movement of flights and service. We can withdraw our offer of a £39 billion divorce bill.

Most of the rest of the world does not trade with us or the EU countries as a part of a customs union and it causes no problem. The EU would face tariffs on sales to us if we go along the WTO route. We must not have a transition period which enables the EU and the remain ideologues to try and draw us back into a union.

This is the land of the common law, of courts of unimpeachable integrity and impartiality, of centuries-old freedoms such as habeas corpus and innocent until proven guilty, of the rule of law and the right to vote—which, incidentally, would be breached if we were subject to EU rules but without a vote in the elections. We have successfully managed immigration; we are fiercely protective of non-discrimination. Those—our values—are threatened by the EU project’s direction, which is why we must protect our freedoms, almost regardless of cost.

We do not have our sovereignty back yet. We hope to get it restored on 29 March next. In the meantime, we are like prisoners squabbling about who is the kingpin in the jail while the warders are still outside with their keys. We must back Mrs May and hope for the best.

European Union (Withdrawal) Bill

Baroness Deech Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Tyler (LD)]

My Lords, as a signatory to this amendment and the others in this group, I encourage Members to look at the words of the amendment and how they will alter the Bill. The Bill currently reads:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,


and so on, so the Minister still has the initiative. It is the criteria by which he takes that initiative that are important. Our amendment would simply take out a phrase so the Bill would read: “A Minister of the Crown may by regulations make such provision as is necessary”.

I shall go back to where the Government led us at the beginning of this process in a moment, but, first, when the Minister responds to the debate, which in Committee and to some extent this afternoon has been characterised by some support for this group of amendments, I plead with him not to rely on the rather flimsy arguments contained in his correspondence with our Delegated Powers Committee. Frankly, they are not worthy of him.

The same goes for his justification in Committee for government Amendments 83C, 83F and 83G to Schedule 7. We will deal with them in detail later, but they are an attempt to derail the formidable arguments for insisting on the relatively objective “necessary” instead of the blatantly subjective “appropriate” throughout Clauses 7, 9 and 17, which are the subject of this group.

As the noble Lord, Lord Lisvane, set out when moving this amendment, all the amendments in this group would replace “the Minister considers appropriate”—what could be more personal than that, where the Minister personally decides that something is appropriate?—with the strictly more objective test of “necessary”. That is the salient difference. That was the subject of much discussion in Committee, and other speakers have emphasised it this afternoon.

Frankly, the Minister’s arguments in his correspondence with the committee do not face up to this issue. For brevity, at this stage I will confine myself to just one or two examples. He asked us to explain “necessary for what purpose?”. The answer is to be found in his Bill. In Clause 7(1), by substituting “is necessary” for the phrase “the Minister considers appropriate”, it is clear what the regulation would do and why it would be necessary. I shall read it in full,

“such provision as the Minister considers”,

necessary,

“to prevent, remedy or mitigate … any failure … or … deficiency arising from the withdrawal of the United Kingdom from the EU”.

It is absolutely clear. Instead of asking why we think something is necessary, he should look in his Bill. That is precisely what Amendment 31 would secure.

The Government have further suggested that there is no material difference between “appropriate” and “necessary”. Why are we having this discussion if there is no difference? Our cross-party, non-partisan committee, which is answerable to your Lordships’ House, has unanimously disagreed. “Appropriate” means suitable, proper and apt, and other words which could be used; “necessary” means that it is judged objectively to be needed.

We should recall that the original position of the Government, when they set out what they intended to do with the Bill, was that only changes needed to make retained EU law work after exit day would be implemented. This amendment fulfils their promise. When it comes to the belated attempt to block these amendments, the Government’s reliance on a statement of “good reasons” for subjective ministerial decisions is totally inadequate, as the noble Lord, Lord Lisvane, has already said.

I return to my original point: the Minister has failed to persuade the cross-party, non-partisan Delegated Powers Committee, which looks very carefully at these issues on behalf of your Lordships’ House, and which has now reported to this effect to your Lordships’ House. So far, it would seem that many Members are similarly unpersuaded.

I hope I will be forgiven for sounding a little bit like Little Lord Echo, but speaker after speaker, at every stage of the Bill, has emphasised that this must not be used as an opportunity to turn the Executive into an elective dictatorship. It is the British Parliament that must take back control, not a minority Government. As a former Member of Parliament, I hope that the Commons will concur with your Lordships’ House and the Delegated Powers Committee on this point. Are the Government really going to go into the last ditch in defence of this apparently indefensible position?

[Baroness Deech (CB)]

My Lords, I am trying to clarify what the noble Baroness, Lady Falkner, said. I think the issue is not “appropriate” versus “necessary” but “the Minister considers”. I believe the point the noble Baroness was making is that, if something has to be “necessary”, that leaves it open for a court to say whether or not it was necessary. If you say “the Minister considers it”, then the issue is whether the Minister genuinely considers it.

[Lord Goldsmith (Lab)]

My Lords, and what is wrong with that?

In Committee, in a most powerful speech, the noble Lord, Lord Wilson of Dinton, with his vast experience from inside the Civil Service, from knowing just what civil servants and Ministers would like to do, gave your Lordships the advice that,

“in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection”—

a very telling phrase. He continued:

“it should be the strict discipline of an objective test of what is necessary”.—[Official Report, 7/3/18; col. 1180.]

I respectfully completely agree with that. It is absolutely the case that, in circumstances where great powers are being given, one needs to be very clear where the discretion lies. Here it is not just Ministers but civil servants. We have been told that there are 109 Ministers, but under the Carltona principle—I have made this point several times and no one has yet contradicted it—many civil servants themselves in effect exercise these powers in the name of the Minister.

So Ministers and civil servants do what they think is appropriate. That is very different from things that are necessary in order to achieve the objectives set out in the clause. As a practising lawyer, I have no difficulty with the concept of what is necessary, but I believe—to use the words of the noble Baroness, Lady Falkner of Margravine, in a different context—that there is a profound distinction between saying, “You can do what you as a Minister consider appropriate”, and saying, “You can do only what is necessary to achieve these objectives”. If this House has a responsibility, I respectfully suggest that it is to ensure that we do not give the Executive more power than is necessary in order to achieve their objectives. The amendment would achieve that. If the Government want to come back with further clarification on the meaning of “necessary”, although I do not believe that is necessary at all, they can do so.