Brexit: Article 50 Period Extension Procedure

Baroness Hayter of Kentish Town Excerpts

Monday 18th March 2019 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

Well, I think we all feel rather sorry for the Minister, who has, after all, said again and again that we will leave on 29 March and now knows that we will not—and that is because of the Prime Minister’s failed strategy of running down the clock to get her own way.

We are told that, if the Government are allowed to table the existing deal yet again in the Commons and it wins approval—the Speaker has just suggested that he is not minded to permit a third meaningful vote without a substantial change to the deal; we hear that perhaps we will have to prorogue and then come back—they will apply for an extension to 30 June.

The more likely eventuality is that the Government will fail to get their deal agreed and thus request a longer extension, such that we will need to participate in the European Parliament elections. Given that returning officers must publish notice of the poll by 12 April, with the Government announcing the date beforehand, can the Minister inform the House which date is planned for these elections, whether the Electoral Commission is geared up for this and when purdah will commence?

[Baroness Ludford (LD)]

My Lords, I think the Speaker in the other place will tonight be a national hero for—

Challenges to Validity of EU Instruments (EU Exit) Regulations 2019

Baroness Hayter of Kentish Town Excerpts

Thursday 14th March 2019 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I also thank the Minister for introducing this. As the noble Lord, Lord Beith, said, it is to correct something in paragraph 1 of Schedule 1 to the 2018 Act—which was perhaps a slightly erroneous judgment made at the time. It affects only a handful of cases, but nevertheless we certainly think that the ability to bring those cases is important.

I have a few questions. One arises from the last point made by the noble Lord, Lord Beith. My assumption is that this is a no-deal SI. Can the Minister confirm that, if we get a deal with a transition period—for the sake of this argument, if we get a deal there is bound to be a transition period—then the CJEU will, once we have amended the 2018 Act in the withdrawal and implementation Bill, have a continuing role in these matters? Can he also confirm that this is a no-deal SI, and that no deal is the only situation in which this SI would have a role?

If we have a deal, will paragraph 2.1 of the Explanatory Memorandum not be a bit misleading? It suggests that there will be no role for the CJEU. In a deal situation, there would be a role for it, not just in the transition but afterwards, because of the provisions concerning EU citizens’ rights. Can the Minister confirm that this SI would not be needed if we have a deal and a transition period? In fact, now that the House of Commons has voted against us leaving without a deal, perhaps the Minister could explain in what circumstances this SI would actually be needed. Is it correct that this SI would not be needed if we have a transition period?

My second question is absolutely not a trick question; it is asked out of my own ignorance. As the Minister explained, the courts will be mandated to inform the relevant Government of a case coming before them. Can the Minister inform the House whether there are any other instances in which any of our courts have an obligation to inform the Government of proceedings that are started before them?

Paragraph 10.7 of the Explanatory Memorandum recognises that we could find ourselves in the position—this point which has just been touched on—where some former EU legislation which has subsequently been ruled invalid by the CJEU remains on the UK statute book after we have left. Can the Minister outline how either his department or a successor department would monitor future CJEU rulings after Brexit to keep abreast of any such rulings which might be relevant to the UK statute book?

Finally, there is the important issue of compensation, which was only slightly touched on by the noble Lord, Lord Beith. The 2018 EU withdrawal act makes it clear that, after exit day, there is no right to damages under the current Francovich rules, except during a two-year grace period for cases that relate to events that occurred before exit day. Under the regulations being considered today, should our domestic courts find that any of our retained law is invalid under the sort of terms outlined, would there be a similar right to damages for two years similar to those allowed under the 2018 Act? That covers cases in which the event started before exit day, but even for cases which are pending on exit day—I think there are three at the moment—if it were found that those laws were invalid, would a Francovich-type compensation be available?

[Lord Callanan]

I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Beith, for their contributions, and I pay particular tribute to the noble Lord, Lord Beith, and the noble Baroness, Lady Taylor, who is not in her place at the moment, for the interest that they have taken in this important matter. We are extremely grateful for their contributions and for their engagement with officials—I know that the noble Lord has taken a close interest in this and I thank him for that.

As I set out in my opening statement, these regulations aim to ensure the effective delivery of justice as we leave the European Union. The regulations will do this by giving domestic judges a temporary jurisdiction to rule on validity challenges to EU laws in domestic courts after exit for cases that have begun before exit.

I will now deal with the questions. The noble Lord, Lord Beith, made some extremely valid points on what might happen if, after exit, the CJEU rules that EU legislation was invalidly made. Would this invalid legislation remain on the UK statute book? As he acknowledged, the short answer to his question is yes. Decisions made by the CJEU will not affect retained EU law. Even if the CJEU makes a decision to void regulation after exit day, as he pointed out, that law would remain on the UK statute book as retained EU law. This is because the EU withdrawal Act takes a snapshot of EU law as it stands on exit day. All law on the UK statute book at that point in time will be valid, as a result of it being made law under the EU withdrawal Act. After exit, it will be for Parliament to decide if and how to diverge from EU law.

I take the noble Lord’s point that, although unlikely, this may result in a law being declared void in European Union countries but not declared void in the UK. It is just a matter of policy disagreement. We would prefer that, after exit day, the Court of Justice of the EU is not given the power to strike down what will in effect be UK law at that point. However, I am sure that if such a circumstance arose, Parliament would want to take a look at the case, see if similar provisions should be made in the UK and see if the law should be changed or deleted.

In response to the noble Baroness, Lady Hayter, I can confirm that, in the unlikely event of this happening, we will of course closely monitor all pending cases that come back to Parliament with potential changes to any retained EU law. Building on that response, the rulings of the CJEU will not be binding on the UK. It would be for Parliament to decide whether to seek changes to mirror CJEU judgments.

The noble Baroness also asked about damages. Damages are already determined by UK courts. Nothing in this SI changes that scenario.

To answer both the noble Lord, Lord Beith, and the noble Baroness, Lady Hayter, the SI will be required in both a deal and a no-deal scenario. Therefore, if we agree a deal and pass a withdrawal Act, the effect of the SI will be delayed until the end of the implementation period.

The noble Baroness, Lady Hayter, also asked a good question about whether there are other instances where the courts must notify the Government of cases that are before them. The courts must issue a notice to UK Ministers and Ministers from the devolved Administrations in cases where it plans on making a declaration of invalidity. This is similar to the requirement under Section 5 of the Human Rights Act, when domestic courts issue declarations of incompatibility under that Act.

Without these regulations, no court in the UK would have the requisite jurisdiction to consider the validity of an EU instrument. Domestic courts would therefore find themselves at an impasse where a ruling on validity is simply not available, either domestically or from the CJEU. This would in turn prevent the effective delivery of justice. These regulations are intended to avoid such a clearly undesirable scenario. As I said in my introduction, my department has worked closely with the Ministry of Justice to make sure that the regulations are workable. The judges and Her Majesty’s Courts & Tribunals Service are well aware of these changes.

As I also said, these regulations provide that a Minister of the Crown, a Scottish Minister or a Welsh Minister or a Northern Ireland department may become a party to any cases concerning validity at any point. There are no impediments for the devolved Administrations to do so; they need only give written notice to the court. Again, this is in recognition of the fact that they may have an interest in the outcome of the case.

Although the number of validity challenges will be extremely small, it is none the less vital, as the noble Lord, Lord Beith, pointed out, that we ensure that justice can still be delivered in the few cases in which these regulations might apply.

European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019

Baroness Hayter of Kentish Town Excerpts

Monday 4th March 2019 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

I do not know if it was the Minister’s own expression or whether “we are gathered together” was written for him, but I was expecting something a little more exciting after that. I congratulate him for getting through yet another speech, given that his voice is not quite back to its normal timbre. He is also employing what for me is another new phrase, “onshored”. Maybe the people behind him can give us a little clue afterwards about the difference between retained, repatriated and onshored and whether there are any more new expressions coming.

Like other noble Lords, I thank the Minister for trying to make sense of something quite complicated but I am afraid that I have a few questions nevertheless. First, the 2018 Act ends the supremacy of EU law over on UK law on exit day. It was there by virtue of the 1972 Act—as paragraph 6.2 of the Explanatory Memorandum reminds us. It ends because of the repeal of, I think, Clause 1 of the 1972 Act. However, assuming that we get a deal, and that this includes a transition period, some of this supremacy might have to continue through the transition period as we will continue to abide by EU rules then. How and when will the 2018 Act be amended to allow for this?

Secondly, paragraph 7.19 of the Explanatory Memorandum refers to the regulations amending Section 6 of the 1993 Act—to which the Minister referred—the provisions as to who is eligible to participate in the Committee of the Regions. Can the Minister let me know whether that is the only statutory change that will be required for us no longer to be on the committee? I have not noticed any reference to the committee elsewhere and as this refers only to eligibility and not, for example, selection, role, time limits or anything else about our membership, in domestic law or anywhere else. Can the Minister confirm whether anything else needs amending to make sure nothing else is left that would send people to that committee? Although not mentioned in these regulations, can the Minister also let us know whether any legislative changes about appointment, eligibility or anything else are needed with regard to our membership of what in my day was called the Economic and Social Committee, but which I know has a different name now?

My third question concerns the fact that the regulations now make good the absence, as we have just heard, from the 2018 Act of consideration of non-ambulatory EU regulations. This question may fall to the Minister’s noble friend Lady Goldie, because I think she dealt with this when we took the Bill through. There was quite a discussion about clinical trials at one point. We were concerned that, while the EU rules about clinical trials have been changed, they will not be operative—I think that is the word—on exit day. We were very worried, therefore, that because we would be taking over what was in operation on exit day, these new rules would apply across the rest of the EU after exit day but we would be stuck with the old ones, with enormous implications for whether we could participate in clinical trials that particularly affect orphan drugs and childhood illnesses. That lack of carryover was of concern. I am worried, although I think that particular issue got sorted by some clever intervention, about whether the introduction of these regulations covering non-ambulatory regulations addresses issues where things change over time and are different after exit day in the way we would want them to. Certainly the feeling was that we wanted to stay absolutely in line with EU regulations. I could not quite understand the difference between ambulatory and non-ambulatory sufficiently to know the answer to that.

My fourth question was raised by the noble Baroness, Lady McIntosh, and is about what happened when these regulations were dealt with in the Commons, where the Under-Secretary of State admitted that he did not know what his department might have been thinking. He has a good excuse: he did not do the Bill, because he was not there at the time, but this Minister, of course, did, so he might have a little more knowledge and has had advance notice since 21 February about why such references were overlooked. The noble Baroness, Lady McIntosh, asked whether it was by accident or design, and it would be useful to know. If it was by accident, we understand that, but it would be good to know whether there are similar examples. If it was by design, it would be interesting to know why it did not happen at the time.

Finally, I have a question which is not specifically on these regulations. To date we note that the Prime Minister’s spokesperson, instead of saying, “We will leave on 29 March” said only, “We want to leave on that day and we will work to try to achieve that”. Of course, as we know, the Prime Minister confirmed last week that, should MPs mandate her to seek an extension to Article 50 next week, legislation will be brought forward to amend the EU withdrawal Act’s definition of exit day. Any such regulation to amend exit day would be subject to an affirmative procedure and therefore require pretty swift consideration in both Houses. Can the Minister give us a little advance notice, as I am sure they are already preparing for that, about when an instrument would be laid, given the requirement on the length of time between being laid and being debated? Since it is already 4 March, I think he will understand why I pose this question.

[Lord Callanan]

First, I thank all noble Lords for their contributions. I shall deal first with the last question of the noble Baroness, Lady Hayter, and commend her for her ingenuity in bringing the subject up in this Committee. As she knows, under the EU withdrawal Act there is a provision for the Government to amend exit day by use of secondary legislation powers. There has been no decision to do that yet. We await details of the various votes that will happen next week, but we remain confident that we will be able to deliver a withdrawal agreement that the House of Commons can vote for with enthusiasm and therefore we will not need to table any references or any further secondary legislation, but if it is required, the ability is there. That is set out in the EU withdrawal Act. That is as far as I want to go with that at the moment in this forum.

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

Baroness Hayter of Kentish Town Excerpts

Wednesday 27th February 2019 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it is a good thing that the Minister has a sense of humour. I have to say that he is struggling not just with his throat but with finding anything new to say. That, I understand: some of us are in the same position. More seriously, he is struggling to recognise the seriousness of the state we are in. I think it would be good if the Minister would heed the advice given to him the last time we met that he should stop being,

“the boy who stood on the burning deck”,—[Official Report, 5/2/19; col. 1430.]

and face today’s reality. The reality is that a 29 March departure is simply not going to happen.

What we are witnessing, to the mystification of observers here and abroad, is a wholly divided Government and a Prime Minister who has let down Brexit voters by failing to provide the promised “smooth and orderly” departure to get the very best out of leaving—a Prime Minister who has unnerved the very businesses which have traditionally looked to her party to understand and promote their interests, who has divided her party and Parliament and who, unforgivably, has failed to unite the country after a divisive referendum. She has failed to reach out to remainers to reflect their interests as well as those who voted to leave. We see a Prime Minister who has failed to reach out to the Opposition, engaging not at all until the last few weeks, and even now refusing to move one iota towards our priority for a deal—a Prime Minister who promised the Commons a vote to halt no deal only when she faced defeat in the Lobbies, yet who even then offered only a temporary reprieve, leaving a no-deal threat on the table after 29 March and, as we have just heard, only the promise of a vote, with no indication of whether the Government would whip against a no-deal exclusion. That, to me, means that she is keeping it tight in her armoury. The noble Lord, Lord Callanan, endlessly reminds us that no deal is the legal default position. We say to him that it is not the moral default position.

I fully expect, when some future committee, no doubt chaired by someone in your Lordships’ House, reviews how the Government handled this sorry saga, it will ask the normal tin-opener question written by the secretary to the committee—cui bono? Had we girls been taught Latin at school, I would be able to pose in Latin, instead of having to do so in English, the more important question—not just cui bono, but who pays? I am sure it is not the ERG members.

It will be businesses, consumers and the country. Fitch is putting our AA credit rating on negative watch, due to the potential exit without a transition period. Of course, that signals a possible downgrade. Meanwhile, the UK would lose its current market access to the 60 third countries covered by special arrangements with the EU, Mr Fox having spectacularly failed to roll these over or to prepare all those exciting new ones with a swathe of other countries, as we were promised.

All of us have heard endlessly about the risk to supplies and businesses of no deal—from a shortage of pallets and life-saving medicines to delays, handling costs, legal queries and, of course, tariffs. I discussed tariffs earlier this week with the noble Lord, Lord Lilley, when we were at LBC. I am glad to see him here in his place in case I get this wrong, because I have to say that he slightly shrugged off the tariff problem, saying that a drop in the pound would compensate for it. That is not what it would feel like to consumers.

[Lord Lilley (Con)]

I am grateful to the noble Baroness for giving way. What I said was that the drop in the pound would compensate those whose tariffs were around the average of 4%, but that, in aggregate, the tariffs amount to £5.3 billion. The saving we make from leaving is more than £10 billion. We would therefore be in a position to help those who face above-average tariffs and still have money in hand.

[Baroness Hayter of Kentish Town]

So the consumers will pay. Just an extra 5% on tariffs? Are we really going to go round subsidising food?

[Lord Lilley]

With respect, the money we save will not come from consumers; it will just no longer be available to the EU to finance its projects. Every year, we pay £10 billion more to the EU than it gives us back. We will no longer do so, and will therefore be in a position to use some of that money to help those industries—particularly farmers and car producers—and ensure that the effect of tariffs, if the EU is foolish enough to continue applying them to us, is offset.

[Baroness Hayter of Kentish Town]

I am talking about the tariffs that we will have to apply to the goods that we import, such as meat and cheese. Those will be paid for by consumers. The Government’s own analysis shows the likelihood of food shortages and increased prices just from the interruption to trade, but a lower pound—whereby people will have less money in their pockets to buy any imported food—means that, in addition to prices going up because of shortages and delays in things arriving here, it will be even more expensive for consumers. The answer to “Who pays?” will be the consumers.

For those wanting to travel, mile-long queues for Eurostar trains, long waits at ferries, green cards for drivers and the loss of health cover will all impact British families. Does this no longer matter to a party traditionally careful of consumer prices and its electorate? The noble Lord, Lord Heseltine, warned last year in your Lordships’ House of the electoral damage to his own much-loved and lived-in party. This continuing drift to no deal must be fuelling his fears. It is certainly fuelling mine, as well as those of the CBI, the IoD and all those affected by the Government’s recklessness.

[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.

[Baroness Altmann (Con)]

Would the noble Baroness ask the Minister to agree that yesterday’s paper which predicted the 6% to 9% reduction in the economy in the event of no deal noted that that excluded any short-term disruption costs from no deal?

[Baroness Hayter of Kentish Town]

It is a shame that he will not be replying but I am sure that his colleague—judging from that lovely poker face of his—has made a careful note of that and will respond later today.

We know that one bit, at least, of the Government is listening because we know they are preparing to set up a hardship fund—presumably with the money that the noble Lord, Lord Lilley, thinks will be available to pay for all those who will lose out; this seems a funny way of running the economy. Despite all that and the pressures for the hardship fund, the no dealers today have been attacking the grown-ups in their own party as “saboteurs, wreckers and blackmailers”. This, coming from politicians who have blackmailed the Prime Minister by voting against her and who are willing to wreck the economy and sabotage business, all for their own ideological hang-up. This has to stop and it has to stop now.

Will the Minister who will sum up, and who is definitely not an ERG hardliner, push his political masters—or, perhaps, his political mistress—to rule out unequivocally any no-deal departure, with its lack of a transition period and the chaos that goes with that? Will he urge the Prime Minister to change her approach and to find a consensual way forward to unite the Commons and the country, and will he ensure that an extension to Article 50 is requested this week? It is clear we will need it, but requesting it this week, rather than being forced into it, will help to calm nerves and offer some certainty to business. Will he work to see that such an extension is used not for more pretence and tweaking of words, but for a serious reconsideration of how we withdraw from the EU?

--- Later in debate ---

[Lord Keen of Elie]

The noble Lord’s observation is utterly irrelevant in this context. Let us be clear as to what the legislation provided. Ultimately, it provided that we would leave the EU on 29 March 2019. This Parliament determined that date—not the Prime Minister, not the Executive. Let us bear that in mind, shall we? It is in that context that you have to look at where we are going.

I come on to some of the observations of the noble Lord, Lord Newby. I am a little concerned for him, because he appeared to proceed on the basis that purgatory has its limits. I am terribly sorry to inform him that, as and when he arrives in purgatory, he may find that it is actually indefinite. He had better proceed with a degree of care in that context. He made an allusion to Mr Corbyn as a “schoolboy”. I do not want to take the allusion too far, but I will refer to one well-known fictional schoolboy called William, who said you cannot have a referendum if you do not know the question. We all know that. The point is that Mr Corbyn may be in favour of a referendum, but we have no idea what question he might or might not have in mind. Other members of his party have advanced questions, of course, but Mr Corbyn himself has not told us what his question is or is going to be. It appears that it is hidden in his allotment at present.

[Baroness Hayter of Kentish Town]

I know Cabinet responsibility has gone a little awry on that side, but we actually still have it. We have made it clear—Keir Starmer, Emily Thornberry and I have made it clear—

[Lord Callanan]

What about Corbyn?

[Baroness Hayter of Kentish Town]

On his behalf. We do not wheel him out on every occasion to make these speeches. I can call him in, if you like. We are quite clear what the questions are. It depends what happens down there but, assuming a deal goes through, it would be the deal that goes through against remain.

Brexit: Options

Baroness Hayter of Kentish Town Excerpts

Monday 18th February 2019 Lords Chamber

[Lord Callanan]

It may well be the same thing. My right honourable friend the Secretary of State is in Brussels today; the Attorney-General will be going this week; the Prime Minister will also be going this week; and, just to add to the contingent, I myself will be going to Brussels later this afternoon.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I think I heard the Minister say that the default legal position if the Government cannot get a majority is to leave without a deal. That may be the default legal position, but it is clearly not the default moral position. Will the Government start thinking about the country and be more serious about looking for cross-party, cross-Parliament support for a deal that can command a majority in the Commons as well as the support of the country?

[Lord Callanan]

I am sorry to tell the noble Baroness that it is the default legal position. It is what Parliament voted for, it is what the legislation says and we are preparing accordingly. However, of course we do not want to leave with no deal; we want to leave with a deal, which is why we are intensively engaged in discussions to try to produce a solution that is acceptable to Parliament as a whole.

EU Withdrawal

Baroness Hayter of Kentish Town Excerpts

Wednesday 13th February 2019 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, considering the lessons of the Brexit debate, the CER’s Charles Grant starts with a dig—although it might have been a compliment—at the noble Lord, Lord Kerr. He describes Article 50 as having been,

“designed to put the departing country in a weak position”,

but he then reckons that,

“the British damaged their already weak hand by putting incompetent and ignorant ministers in charge, by being horribly divided (in contrast to a united EU) and by taking two years to come up with a half-serious proposal for the future relationship”.

He then considers that,

“the biggest lesson … is that any effort to leave the EU will turn out to be … more complicated, time- consuming, expensive and damaging than its advocates ever suggested”.

That is not quite the phraseology of Donald Tusk but I think that the spirit is the same.

Meanwhile, the indecision rolls on. There are 44 days to go and no solution. No one has the foggiest idea how this will all play out. There is no “10 minutes to landing”, in the words of the noble and learned Lord, Lord Hope. The electorate, according to Lord Ashcroft’s polls, say that the problem is that Ministers,

“left their homework until Sunday night”.

We now witness the Prime Minister becoming the Oliver Twist of negotiations, not in demanding a better deal for the UK, which of course any Prime Minister should do, but in asking for something for herself—more time. On every occasion on which she comes to Parliament, it is to ask for more—another bowl of time to try to wriggle out of a deal which she signed and negotiated, which she first recommended to Parliament before then voting to change it, and which she now thinks she can get through only by running down the clock. She endlessly asks for time when what she really plans is to take the country to a very high mountain late next month, force it to look over without a parachute—the no-deal jump—and then offer her plastic wings of an inadequate deal to soften the landing on the rocks below. What is her advice to colleagues as they peep over? It is: “Hold your nerve”. What a kamikaze pilot.

We are partly on that cliff edge because the Prime Minister refused to start by building consensus, rather than learning lessons from the Anglo-Irish agreement process, which was described earlier by the noble Lord, Lord Alderdice. Very late in the day she offered talks with the Opposition. What happened when the Opposition responded? Our leader wrote to the Prime Minister, setting out ways in which the deal might attract parliamentary approval through changes to the political declaration, not least to avoid a catastrophic crash-out which would damage business, commerce, travel, our diplomatic, trading and security relationships, and the future of our economy. What did he get in reply? A churlish, inaccurate opening paragraph, where, in response to some thoughtful points about the future, she instead falsely writes:

“It is good to see that we agree … not to seek an election or second referendum”.


Neither Labour nor this letter said anything of the sort. The letter was about the EU deal, making no mention of our much-wanted election, nor a potential referendum—bad politics, Prime Minister. It is a testimony to her own preoccupation with rows in her own party rather than the needs of the country.

More seriously, her letter made no mention of no deal and its avoidance, nor of any extension to the Article 50 timeframe. She dismissed the very inaccurate description of Labour’s call for “a” customs union, to reject “the” customs union, but as the noble Lord, Lord Butler, reminded me earlier, that was something Labour had never asked for. Indeed, a full free trade agreement could, under WTO definition, be a customs union, if it had a common external tariff, which the Article 24 option mentioned earlier would of course not include. It is likely that the full free trade agreement we will probably end up with will have a common external tariff—so that is where we will get to anyway.

I will respond to questions from the noble Lords, Lord Lansley and Lord Howell. First, the noble Lord, Lord Howell, asked where we get our briefing from, as though it were made up in the Library—not a bad place in which to make things up, mind you. I, and all the team working on Brexit, draw on detailed discussions with very seasoned trade negotiators, senior WTO officials and experts, dispute adjudicators and specialist trade lawyers. If anyone thinks we are doing this on the back of an envelope, I can tell them that that is absolutely not the case. I also say that, yes, we want to be part of a customs union and we wish the Government would discuss this more positively with us, rather than repeating that mantra of an “independent trade policy”, presumably in the belief of some golden goodies coming from the US. But what are those golden goodies? As my noble friend Lord Puttnam warned, American lobbyists are already demanding that any UK-US trade deal goes beyond just the chlorinated chickens we have heard about, to include changes in NHS drug rules, weaker data protection, carcinogens in pistachio nuts and lower food safety standards. Will the Government risk no deal for that?

One line in Jeremy Corbyn’s letter was not disputed by the Prime Minister: that there is,

“a clear majority in Parliament that no deal must … be taken off the table”.

It is obvious why: consider the immediate imposition of tariffs and checks, transport chaos and shortages of medicine and certain foods. It would be catastrophic for certain industries. Just today, we heard about a possible loss of jobs at Ford, because of the challenge to car manufacturing. A no-deal Brexit is,

“the biggest threat businesses have faced since 1939”,

according to one trade association, with the possibility that,

“one in four food exporters…could go out of business within six weeks”,

not least because meat exports, faced with over 13% WTO tariffs, simply become unprofitable. It is not just domestic producers—the Falkland Islands desperately needs to retain its tariff and quota-free access to the EU 27 markets, which take 94% of its fish, as it could not compete with 18% tariffs it would then have to pay, putting all its economy at risk. Mrs Thatcher would not have approved of such disregard of the Falklands.

The CBI’s Carolyn Fairbairn talks of near “negligence” for failing to resolve the political crisis, saying that,

“we really are in the emergency zone of Brexit…this is real danger time”.

Even David Davis seems to accept that danger, calling for a tax-cutting no-deal emergency budget. Chillingly, while acknowledging that sterling could fall by over 20%, he asks:

“Is this such a bad thing?”


Well, clearly not if you are rich and well paid, but on low fixed wages, as food prices soar, it might indeed be such a bad thing. I trust the Telegraph was not well briefed about government plans, codenamed Project After, because it says that these included slashing tariffs and cutting taxes. Less money for Government would mean diminished services, lower incomes, and fewer nurses, teachers and police. I wonder which communities would feel the chill wind of that?

The Prime Minister is, possibly deliberately and certainly irresponsibly, taking us to that cliff edge on 29 March, with perhaps the meaningful vote in the Commons delayed until just days before, if all that Brussels bar talk is to be believed. This makes an extension to Article 50 inevitable, if for no other reason than that your Lordships’ House, let alone business, is not ready for that.

The uncertainty facing citizens, exporters and importers is intolerable. The Government should now admit we need longer before we leave, especially as any extension will require negotiation with EU partners, each and every one of which has to consent. They should start readying for the inevitable now, as recommended by the noble and learned Lord, Lord Hope, the noble Lords, Lord Cormack and Lord Kerr, and the noble Baroness, Lady Bull.

I would never question whether there is a special place somewhere for those who dilly and dally over vital decisions needed for our country. However, I can predict that the electorate will be unforgiving, particularly in polling stations, if Ministers bend more to their ERG caucus than to the interests of the country, sacrificing the economy on the altar of short-term political survival. It is in everyone’s interests that we do not leave the EU without a deal, and it is in democracy’s interests that this matter is brought before Parliament in a timely manner. Without the date in our Motion, such a vote would not be timely, as it would be on the eve of possible departure—a real gun-to-the-head vote. In light of that, I trust that the whole House will support the Motion shortly to be moved by my noble friend.

Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Baroness Hayter of Kentish Town Excerpts

Monday 28th January 2019 Lords Chamber

[Lord Dobbs]

My Lords, I thought this would be a debate reserved for headbangers, but it is a privilege to have followed two such fine and thoughtful speeches from the Back Benches. Of course, all the Front-Bench speeches were scintillating as well.

One of the most powerful memories of my life is that of a young man in a white shirt on his own in Tiananmen Square, who walked out in front of a column of tanks and stopped them dead. Why? Because he wanted a voice, a say in how he was governed. His was just one voice, but that voice rang out around the world. Another enormous memory was that of the Berlin Wall. I lived for a while in Berlin as a young man in the 1960s, shortly after the wall was built. The wall was one of the most evil things I had ever witnessed. One of the most joyous moments was the sight of it being destroyed, not by tanks and missiles but by the bare hands of those who also wanted a voice and a say in how they were governed. I have a chunk of that wall at home to remind me.

There are times when I think we in this country take our own freedoms too much for granted, particularly the tolerance that glues the bits together. Tolerance is the sticking plaster of a democratic society. Without it, our system does not work—and right now, it is not working. I wonder if noble Lords saw the alarming poll last week suggesting that 9% of all leave voters would mind if one of their close family married a remainer. It is a sign of awful intolerance—almost one in 10. Perhaps that is to be expected; we Brexiteers are so often derided as bigots and xenophobes. What of remainers? In that same poll, it was nearly four in 10: 37% would object if one of their close family members married a Brexiteer. I assure you, you can relax: I am not in the market. I am not sure Boris is, either. But that poll suggests an awful lack of tolerance.

Things are changing for the worse, and it is our fault. We politicians have totally overplayed our hand—taken a challenge and made it far worse. We throw accusations and exaggerations around like children hurl snowballs. How can we be surprised if others follow our example and do not trust us any longer? I doubt we deserve to be trusted; we are “a ship of fools”, as my noble friend Lord Howell of Guildford so accurately and eloquently suggested in that very fine speech. And what do we do? We so often indulge in baseless scaremongering and insinuation. We fight for what we believe in, of course we do, but there will be a time beyond Brexit—soon I hope—when we will have to return to a system of trust and tolerance, if there is any left.

Most noble Lords know where I stand on Brexit and I am not going to talk about the specifics today—what is the point? At this time tomorrow it may all have changed. Will it be plan A, plan B, plan C, triple plus or the Labour Party policy of having no plan at all? Will we have withdrawn from the withdrawal agreement or customised the customs union? Will we have sent our troops to match the legions that Leo is apparently massing at the Irish border? It is so sad and so pointless—and we wonder why people think politicians have lost the plot.

We should reflect on the fact that we in this House, along with the House of Commons, voted to give the people a referendum in the first place. We promised that we would abide by the outcome. We voted through the withdrawal Act and we approved Article 50. Whether or not we approved of it is another matter, but that is what we have done. We have run out of excuses and almost run out of time. We have ripped off the sticking plaster of tolerance. The mess that we are in is not the fault of the people—it is our fault. Our system is not about doing what we think is best for the people but enabling them to do what they think is best for themselves.

What do I fear? I fear people coming to the conclusion that there is not much point in voting when their elected politicians keep turning a deaf ear: that they will stop voting and instead try to change things by other means, as they have on the streets of Athens, Rome, Berlin and Paris, and as they did with the poll tax in London. We can stretch their tolerance too far. I lose sleep over this, as I am sure many noble Lords do. I hope that my nightmares are nothing more than bad dreams and that we will somehow stumble upon a deal that delivers what the people voted for.

If we cannot in Parliament reach agreement, we need to do what our constitutional practice says we should do: let the people sort out the mess we have created. There is only one way to do that—as my noble friend Lord Howell of Guildford has elegantly set out in the past—and that is to hold a general election. Not a second referendum, which is nothing more than a loser’s charter; not grabbing at opinion polls, which our Lib Dem colleagues dine on so selectively; not further delay; not even more divisions—but a new general election which will give people the opportunity to take back control.

I know that some of my Conservative colleagues say that that might let in Mr Corbyn but, cheer up, even the Labour Front Bench does not want Mr Corbyn in Downing Street.

[Baroness Hayter of Kentish Town (Lab)]

I do.

[Lord Dobbs]

Then some have changed their tune. I hope that we in my party have not screwed up so badly that we have made Mr Corbyn electable. If we have, again, we have no one to blame but ourselves.

We have complained long enough about the democratic deficit. This is not the time to do what they do in Brussels and make up the voters’ minds for them. If we do not honour the people, they will not bother honouring or even tolerating us. David Cameron made a good speech about it all at Bloomberg—noble Lords might remember it. He said that for too many people the EU is something that is done to us, not for us. Wise words which outlasted Mr Cameron himself. Let us remember that the only thing that is certain in the midst of all this self-inflicted chaos is that the British people voted for Brexit: not to remain, not to delay, not for silly parliamentary games, but for Brexit. So unless we want to suffer Mr Cameron’s fate, let us do this for them, not to them, and try to earn their respect once again.

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I sometimes feel that Sir George Rostrevor Hamilton had Boris Johnson in mind when he wrote of political columnists:

“I am the daily mentor who

Tells the Premier what to do

And when she’s done it, I go on

To tell her what she should have done”.

Of course, Boris Johnson was no mere mentor. He was a player, tasked with taking the UK out of the EU such as to preserve the exact same benefits as membership. He, David Davis and Dominic Raab failed to negotiate a deal acceptable to Northern Ireland or to Parliament. Having got the Premier to adopt unhelpful red lines, they then jumped ship and, as foreseen by Sir George, now shout from the sidelines what she should have done. Worse, the ERG now lays down new demands that we should contemplate a no-deal exit. These siren voices—despite rocks, storms and tides—lure the PM towards, if not a shipwreck, at least holding the country below the water.

That is not my prediction. Despite what we have just heard, P&O—which knows a thing or two about rocks, tides and undertows—will re-register its fleet under the Cypriot flag, as the noble Lord, Lord Campbell, has revealed. Bentley, Dixons and drugs companies are stock-piling and, as we have heard, a number of supermarkets have pleaded against no deal not only because prices will go up but because shelves might be empty. The CBI demands that no deal be ruled out, and the British Chambers of Commerce reports thousands of companies triggering emergency plans to cope with no deal, many even moving outside the UK should we crash out.

Tom Enders, CEO of Airbus—which has 14,000 skilled workers, plus 110,000 in the supply chain—says that the company could pull out of the UK if there is no deal, and begs us not to,

“listen to the Brexiteers’ madness which asserts that, because we have huge plants here, we will not move and we will always be here. They are wrong”.

Business Minister Richard Harrington described the example of Airbus as a “disaster”, and warned that no deal would also threaten car manufacturing. It seems that the ERG is deaf to such realities. Ex-Minister David Jones claims that Airbus does not understand the aerospace industry—rather like Boris Johnson claiming that Jaguar Land Rover does not understand the motor industry.

Luckily, there are some grown-ups in the Government who are rather more realistic. Philip Hammond described no deal as a “betrayal” of the referendum, and he reassured business that it would be defeated in Parliament. The Justice Secretary David Gauke calls it “disastrous” and, along with Richard Harrington and Health Minister Steve Brine, suggested he could not remain in a Government where this was the preferred option. Tobias Ellwood says the option must be ruled out, it being,

“wrong for government and business to invest any more time and money in a no-deal outcome”.

Of course, travel is threatened by a crash out—partly because 3.5 million passports might not be valid in some EU countries, and up to 5 million airline tickets could be cancelled if the EU freezes a number of flights, as proposed. The Manchester Airports Group forecasts,

“lasting consequences of a disorderly exit … on economic growth, consumer confidence and business investment”.

Freight is similarly at risk, with cross-channel ferry trade possibly dropping by 87%; it is the Border Force—perhaps on the noble Lord’s advice—which used that figure.

The poultry industry, producing half the meat we eat, says that the consequences of no deal would be catastrophic for its 38,000 workforce and for consumers. Britain could risk £1 billion in tax. Crucially, it fears,

“a two-tier food system where only the affluent can afford to eat British poultry that meets British standards”.

As the noble Duke, the Duke of Wellington, said, almost all Welsh meat exports go to the EU, so no deal would be horrific. Little wonder that the National Assembly for Wales called for the emergency reconvening of the UK Joint Ministerial Committee to seek agreement on ruling out a no-deal exit.

The Met Police head of counterterrorism spoke of his deep concern about a no-deal Brexit loss of intelligence and data sharing with Europe, which would leave Britain less safe. We heard a similar concern from the noble Lord, Lord Ricketts, and the noble Baroness, Lady Manningham-Buller, warned that no deal would leave us less safe. We know of the dangers for the good people of Gibraltar.

No deal means no transition period, so it means the immediate imposition of tariffs, rules of origin declarations, border checks and British citizens in Europe plunged into uncertainty, with possible loss of residence and employment rights. If this were not so serious, it would be a great James Graham play, but this is for real.

Parliament itself has challenges ahead. Originally the Government planned for the Commons approval to take place on 11 December and the withdrawal agreement being introduced on 12 December. It was envisaged that the five-week Christmas delay would be followed by acceptance by the House of Commons on 15 January, and of the Bill on 16 January. The 230 defeat ended that, but even if the deal were struck tomorrow, we would be facing a daunting task of handling seven or more Bills and a few hundred SIs in 60 days—37 sitting days. It is beginning to sound like sitting nights rather than sitting days.

Now we hear that the Government are going to take it back to the House of Commons on 13 February, so that would mean even fewer sitting days to deal with the legislation. Should the Chief Whip be dreaming of fast-tracking Bills, he had perhaps better reread our Constitution Committee’s 2009 report on which “exceptional circumstances” might justify fast-tracking, and its calls for proper scrutiny to include time for consultation and for full transparency. It also notes that fast-tracking should not be used for predictable issues and should involve cross-party agreement and that any relevant legal action should be published. The Constitution Committee stressed that your Lordships’ House’s constitutional responsibilities would be heightened for fast-tracking.

Given that we know that the withdrawal agreement Bill exists, because it was planned to be introduced some time ago, perhaps the Minister could release relevant clauses to our Constitution Committee now so that proper scrutiny of the novel, complicated legal issues can begin. Will he also guarantee that there will be sufficient parliamentary time to scrutinise all relevant legislation, if necessary by extending Article 50? All this suggests that for business, for Parliament, for the Civil Service and for transport planning, in order to build consensus we need more time on this major constitutional and economic issue. We must denounce no deal in the way described by the noble Lord, Lord Hannay, and find a way forward in the interests of the whole of the UK, our citizens here and those in the EU. I urge support for the Motion shortly to be moved by my noble friend, which rules out no deal and calls for time for us to facilitate any legislation agreed by the Commons.

--- Later in debate ---

[Lord Callanan]

I refer the noble Lord to the question that I answered earlier. We cannot completely rule out no deal because, as I have repeatedly said, that is the legal default—and that is what the Motion is asking us to do.

[Baroness Hayter of Kentish Town]

My Lords, it is true that in my winding-up speech I did say that we should denounce no deal, but the Motion that will be moved does not say that. It asks us to seek an agreement.

[Lord Callanan]

We are going round in circles here. I refer to the point that I made. Has somebody got a copy of the Motion?

Brexit: Negotiations

Baroness Hayter of Kentish Town Excerpts

Thursday 24th January 2019 Lords Chamber

[Lord Callanan]

Of course we do not want no deal, if that was the implication of the question put by the noble Baroness, but that is the legal default option both under the Article 50 process in European law and now under British law, so we are preparing for that eventuality.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, any no-deal departure would put in jeopardy the people of Gibraltar, their right to self-determination and their 300 year-old relationship with the Crown. However, we read yesterday that the Spanish Government want to use the EU’s no-deal plans to push for the “decolonisation” of Gibraltar. This is the sort of risk that no deal brings. Can the Minister reassure us that Gibraltar is uppermost in the Government’s negotiations and that we will make sure that we do not depart without a deal?

[Lord Callanan]

Let me say to the noble Baroness that of course I can give her a reassurance that we are negotiating hard alongside Gibraltar. Gibraltar will leave the EU at the same time as the UK does. However, asking me to rule out no deal, as the Labour Party continues to do, is an impossible job. There are essentially three solutions to our current predicament: we can have a deal; we can have no deal; or we can have various forms of remain. The Labour Party tells us that it is against this deal, that it is against no deal and yet it says that it wants to respect the result of the referendum. The party really needs to decide what it is actually in favour of rather than what it is against.

Brexit: Support for Remaining in the EU

Baroness Hayter of Kentish Town Excerpts

Wednesday 16th January 2019 Lords Chamber

[Lord Callanan]

I am sorry to disagree with the noble Lord. There have been a lot of opinion polls since the referendum result, so while researching this topic this morning, I looked to see whether any analysis of these has been done. Indeed, there has. Let me read what Professor John Curtice, who I think we would all agree is a respected polling analyst, said after analysing all the polls:

“In short, neither side in the Brexit debate has secured any ‘momentum’ so far as the balance of public opinion is concerned—and any claims to the contrary made by protagonists on either side of the debate should be regarded with considerable scepticism”.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, 17 million people may have voted in the referendum but in this House, a majority of 159 voted against the deal, as did a majority of 230 in the other House. Is it not time that the Government stopped being so dismissive of Parliament and of the votes and views here, and began to listen? Ruling out talking to the Opposition is irresponsible. Is it not time for listening and some serious talks?

[Lord Callanan]

Maybe the noble Baroness should stop being so dismissive of the referendum result in the first place. The Government have said that we take the opinion of Parliament extremely seriously. The Prime Minister will conduct discussions with party leaders and others to see what is acceptable in Parliament.

Air Pollution

Baroness Hayter of Kentish Town Excerpts

Wednesday 9th January 2019 Lords Chamber

[Lord Callanan]

As I said, 13 member states are subject to these infraction proceedings. Were the backstop, or some level playing field provisions, to come into effect, they would not be enforceable by the European Court of Justice.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, according to the withdrawal agreement—I think it is in Annex 4, with which the Minister will be familiar—if there are any disagreements over air pollution commitments, they are to be agreed by the joint UK-EU committee. However, if those two sides cannot agree, unlike in other areas, there is no provision for an arbitration panel. Why is that?

[Lord Callanan]

It depends on whether the noble Baroness is referring to the implementation period or to the backstop. If she is referring to the backstop, I refer her to the answer I have just given to the noble Baroness, Lady Ludford.

[Baroness Hayter of Kentish Town]

I am sorry, but we are talking about enforcement, and the Minister has not answered the question on enforcement, as opposed to the rules.

[Lord Callanan]

I answered the noble Baroness, Lady Ludford. Were there to be a dispute over the application of the level playing field provisions, it would not be enforced by the European Court of Justice.