Northern Ireland Protocol Bill

Baroness Ludford Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Baroness Ludford (LD)]

Has the noble Baroness seen the latest opinion poll, which shows that, when you exclude “Don’t knows”, 60% of British people want to rejoin the EU?

[Baroness Fox of Buckley (Non-Afl)]

I am always delighted when people think that opinion polls and what is said on Twitter are democracy in real life. I do not know why we bother with the ballot box—we should just go to an opinion poll. I believe in democracy and the democratic right of the British and UK people to make their decisions without rushing off to Opinium Research, or whoever it may be.

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[Baroness Ludford (LD)]

My Lords, we heard two views earlier in the debate, which was longer than any of us expected, on the two amendments. We heard two views on whether this Bill was going to poison the chance of negotiations with the EU. One was from the noble Lord, Lord Bew, who thought it would not. I agreed with the view put forward by the noble Lord, Lord Clarke, that the Bill is extremely unhelpful to negotiations, and with the point he made about the risk of a trade war with the EU, which is the last thing we could possibly afford to risk—and I would add the prospect of undermining relations with the United States.

I noted the helpful and sensible suggestion of the noble Lord, Lord Cormack, that we get a briefing session on the negotiations, but perhaps even today we might hope that in replying the Minister can give us some flavour of the issues that the Government believe can be the peg for progress in the negotiations in, hopefully, the weeks rather than the months to come. The EU has been making suggestions for the best part of 18 months, I think—certainly more than a year—but the Government have not taken up the opportunities that have been offered, so I fervently hope that they are now going to be extremely serious about these negotiations.

I want to pick up three suggestions—which are not exhaustive—made by my Alliance Party friend in the other place, Stephen Farry MP. The first is about flexibilities in the protocol. The EU has made numerous suggestions and progress on the issue of medicines. The Government do not seem to have given much acknowledgment to the progress that was made on that subject. Perhaps the Minister might give us some idea of other sectoral issues where he thinks progress could be made.

The second suggestion made by Stephen Farry was to use Article 13(8) of the protocol, which allows the protocol to be superseded in whole or in part. Apparently, that was put in at the request of the UK Government, and it could be used to negotiate changes to the protocol by mutual agreement. Perhaps the Government could tell us whether they have any intention of invoking Article 13(8) of the protocol.

Mr Farry’s third point is one that has just been made by the noble Baroness, Lady Ritchie, and by my noble friend Lady Doocey at Second Reading. It relates to the very valuable contribution that a veterinary or SPS agreement could make, particularly to solve problems around food and agriculture, especially in the dairy industry. This offer has been on the table from the EU since the protocol was first signed, and it has been a matter of considerable puzzlement that the Government have not progressed that.

Perhaps the Minister, in replying, could give us some sort of steer on where he thinks the opportunity exists to make improvements either in the protocol itself, if Article 13(8) were to be exploited, or in the implementation of the protocol by taking the route of flexibility and additions, such as an SPS agreement.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank all noble Lords for their contributions. I will go straight to the amendments. Amendments 1 and 70 in the name of the noble Baroness, Lady Chapman, would make the commencement of regulations under this Bill dependent on the Government confirming that they have been unable to reach a negotiated settlement with the EU and are of the opinion that all legal routes have been exhausted. I will repeat what I have said a number of times: our preference remains to resolve the issues around the protocol through talks. As I have already indicated, my right honourable friend the Foreign Secretary and Vice-President Šefčovič have already spoken a number of times to reiterate their shared commitment to finding solutions to this issue. Consequently, as I have also said already, the Government are engaging in constructive dialogue with the EU to find solutions to these problems. The Government will update Parliament on the talks with the EU at the appropriate time.

My noble friend referred to possible briefings. I cannot make the detailed commitment that my noble friend is seeking, but I will certainly reflect on his suggestion. I have just spoken to my noble friend Lord Caine about whether we could provide, as the noble Baroness, Lady Ludford, suggested, an outline at times; I certainly respect your Lordships’ insights on this. I will take that back and reflect on the proposals that have been put by my noble friend. As I said in concluding the earlier debate, to the Front Benches in particular, I assure noble Lords that I will seek to continue to update noble Lords on progress. I know that I speak with a similar commitment to that of my noble friend Lord Caine in dealing with Northern Ireland on this issue as well.

However, it is the Government’s view that we need to progress this Bill now to fix the practical problems that have been highlighted. Under these amendments, the UK would not be able to implement the solutions to the issues of the protocol while discussions with the EU were ongoing. This would mean that the EU could, for example, seek to introduce discussions indefinitely, under the knowledge that this Government would have to admit that negotiations had not reached a successful conclusion.

I am sure noble Lords would agree that we should not present ourselves with a choice between continuing negotiations indefinitely and no unilateral solutions for Northern Ireland. The Government—although I know that other noble Lords have different perspectives —have given their position as to why we feel it is necessary at this time to pursue and continue with the progress of this Bill.

We also believe that these amendments would require the Government to confirm that they have exhausted all legal routes under the withdrawal agreement before they could bring substantive provisions of the Bill into force. The Government have been clear that the Bill is justified, in our view, under international law. That is without prejudice to our position on other mechanisms available—

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Moved by

[Baroness Ludford]

3: Clause 1, page 1, line 15, at end insert—
“(e) requires Ministers of the Crown to set out their legal advice on altering the effect of the Northern Ireland Protocol in domestic law.”Member’s explanatory statement
This is linked to Baroness Ludford’s amendment after Clause 25 (Publication of legal advice).

[Baroness Ludford (LD)]

My Lords, I rise to move Amendment 3 and speak to Amendment 67. If the Government are so confident of their legal case, which rests on the doctrine of necessity, they should surely have no hesitation in making a full legal justification available to us.

They surely owe us that much, as we grapple with the contrary views that have been expressed by many distinguished sources. The International Law Commission has stressed that the doctrine of necessity must be construed narrowly and can be invoked only in exceptional circumstances, being strictly necessary to safeguard essential interests against a “grave and imminent peril”. Our Constitution Committee finds:

“It is difficult to conclude that the circumstances cited by the Government”


in their own short legal paper, have indeed

“created ‘grave and imminent peril’.”

As the noble Lord, Lord Pannick, pointed out at Second Reading, the Government have been complaining about the protocol for a long time—almost since they signed it, in fact. So if it was not imminent three years ago, it is not really imminent now. The Constitution Committee also doubts that this Bill is the “only way” to protect UK interests since, as has already been explored, there is Article 16, which has not, despite many noises over the past year, been initiated. There are also dispute resolution provisions, and of course negotiations—or talks or something—which are, as we have been discussing, thankfully now going on.

The Constitution Committee also argues that the Bill’s provisions

“go beyond those strictly necessary to remedy the peril that the Government”

claim to identify. After all, if the Bill includes, in Clause 13, the removal of the oversight role of the CJEU, what has that got to do with the doctrine of necessity and “grave and imminent peril”? I would be interested in the Government’s reply to that point.

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[Lord Stewart of Dirleton (Con)]

My Lords, in any case, there will be parties that are disappointed to a greater extent than others. The point is that one party proposes. That party does not determine the question; the determination of that question falls to someone else.

In relation to the point made by my noble friend Lady Altmann, our preference for negotiation clearly remains. As the Committee has heard, that negotiation is not interrupted or affected by the Bill moving through your Lordships’ House.

[Baroness Ludford (LD)]

My Lords, the Minister said that the four-page document we saw in July was designed to assuage our concern. Unfortunately, it did not. In one sense, I am impressed that the Government are prepared to receive criticism of their legal assertions in that document from people of the stature of Sir Jonathan Jones, Professor Mark Elliott, the noble Lord, Lord Pannick, and my noble friend Lord Campbell of Pittenweem, and still say, “Well, the four-page document adequately sets out our case”. I am sort of impressed but also surprised that the Government are not provoked by the level and depth of that criticism to make a bit more of an effort.

One of my noble friends—I cannot remember which—highlighted the difference between the assertion made at Second Reading that the problem lies in the protocol and the emphasis this evening that the problem lies in its implementation. That would imply that there is no need to rip up the protocol, which is what the Bill is designed to achieve, and that negotiations or dispute resolution up to the ECJ would fit the bill as the problem is in the implementation. The Government keep switching their ground depending on, it seems to me, who most recently raised a point as to whether the real problem is the protocol or its implementation. The Minister said that invoking Article 16 would deal only with the symptoms not the protocol, but surely “symptoms” are the same thing as “implementation” in this context. Again, there is inconsistency here over whether the problem lies with the text of the protocol or its implementation.

The Minister rather confused me with his references to the CJEU being part of the problem. Again, that was known three years ago. The Government agreed and signed up to what the EU would not have otherwise agreed to—Northern Ireland being effectively part of the single market—without the CJEU being the ultimate arbiter of legal disputes. However, I have frankly never taken the point from the right that court adjudication creates a democratic deficit. We do not expect courts to be democratic. They are part of a liberal democracy but are not themselves supposed to be an epicentre of democracy. They rule on the application of the law.

I do not think that it says much for the Government’s knowledge, understanding, foresight or policies that they are now seeking to diverge from the single market, not least in the Bill—I cannot remember its full title; it is something like the revocation of retained law Bill, otherwise known as the Brexit freedoms Bill—that had its Second Reading in the other place today; I do not know whether that is still going on. Diverging from single market legislation makes the implementation of the protocol more difficult so there does not seem to be any coherence in the Government’s policy. They criticise the implementation of the protocol but are going to make that implementation more problematic; indeed, the noble Baroness, Lady Altmann, talked about how maintenance of regulatory alignment would help east-west trade. A UK return to the single market, if not the EU, would do so even more.

[Lord Bew (CB)]

This is a little simpler than our discussion, which has reached a rather convoluted shape. The Government were clear when they launched the Bill that its function is to fix it, not to nix it, as the then Prime Minister said when he came to Belfast, in one of his graphic expressions. That is the simple fact with the protocol, not that you would realise it from anything said in this House today. For example, the Government’s most important commitment to the EU, which is not to have a hard border and to protect the single market, is completely up front in the Bill.

This debate is on whether the Bill is completely destroying things, but we have all been told that it is to fix it, not to nix it. There really is not much to add. The idea may be wrong. There are a number of reasons why it might not work. The Government’s case in international law may not be as strong as the Government believe. The general views of international lawyers on this subject are certainly more complex than most speakers in this House acknowledge. It is certainly a more complex matter—but this is to fix it and not to nix it.

[Baroness Ludford (LD)]

I will not prolong the debate as we all want something to eat. I simply disagree with the noble Lord.

The noble Lord, Lord Dodds, spoke of a lack of trust. As the noble Baroness, Lady Chapman, said, his argument is surely not with the opposition parties, because we have not caused a lack of trust. I happen to believe that unionists in Northern Ireland have long had a bad deal from English Tories, which makes me rather surprised that they have such a close relationship.

I have sympathy with the argument about the lack of democratic input from Northern Ireland into single market legislation, but only the UK being a member state of the EU can fully solve that problem, as it did before. Obviously, I speak as a long-term member of the European Parliament. If there are ways to take into account the views of Northern Ireland, I would be the first to support those suggestions.

The noble Lord, Lord Pannick, answered the point on Article 16. It is not that anybody who has raised it here this evening is advocating the use of Article 16; it is just that the Government cannot invoke the doctrine of necessity when they have not exhausted all the other possibilities.

I am afraid that the Minister, who did his best in slightly shorter time than at Second Reading, has not satisfied me, and probably not my Benches, that the Government are able to put further meat on the bones of how they can justify the doctrine of necessity and thus the legal arguments for the Bill. I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

Northern Ireland Protocol Bill

Baroness Ludford Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, in a recent speech the vice-president of the European Commission, Maroš Šefčovič, said:

“You may not hear this often from a European Commissioner, but it is high time we got Brexit done”.


The irony of this Government’s position on the protocol and this Bill is that they seek to overturn an instrument that was part of the package their party so triumphantly said got Brexit done—whatever rewriting of history we have heard tonight. Perhaps Mr Šefčovič’s answer came last Friday when the Secretary of State for Northern Ireland, Chris Heaton-Harris, said:

“I want to be very positive about the chances of getting a negotiated solution. We are working in good spirits and in good cooperation … We need to show some progress on that”.


The noble Lord, Lord Hannay, reminded us that the gap is pretty small. The noises are hopeful and these Benches urge a rapid and constructive result to the negotiations on possible adjustments to the implementation of the protocol, instead of this unacceptable unilateral abrogation of a treaty.

I note that the Minister, the noble Lord, Lord Ahmad, referred to “technical talks”, which makes the point that the protocol is not being reopened. The noble Earl, Lord Kinnoull, spoke of the impasse in the wider UK-EU relationship, not least the blockage of our access to Horizon, a very unfortunate spillover. The original mistake was pursuing the hardest of hard Brexits and cutting the UK out of the single market and customs union, as the noble Viscount, Lord Hailsham, emphasised. Let us hope that sense will prevail on that score in years to come.

But that original mistake of policy was accompanied by a complete absence of integrity. As my noble friend Lord Bruce said, it was starkly clear that “Get Brexit Done” was a great electoral slogan for a weary electorate, but at its heart it was, and is, a deliberate deception. My noble friend Lord Thomas of Gresford recalled that Mr Johnson advised traders to throw paperwork into the bin. So, when the Government now complain of the protocol’s “unnecessary checks and paperwork” and “burdensome bureaucracy”, we are entitled to point out that this was their sovereign choice. But, as my noble friend Lord Purvis of Tweed recalled, Liberal Democrats, along with our partners in the Alliance Party, were ridiculed and condemned when we repeatedly warned of the implications of the protocol for trade and business. Professor Katy Hayward of Queen’s University Belfast said:

“This is a bill that is purportedly intended to protect the 1998 Good Friday (Belfast) Agreement, but as it stands it looks set to bring new levels of economic and political uncertainty for Northern Ireland”.


As the noble Lord, Lord Jay of Ewelme, said, the present uncertainty is destabilising.

My noble friend Lady Suttie pointed out that the Bill is not something that the majority of people in Northern Ireland or the business community actually want. My noble friend Lady Doocey drew attention to the problem that a dual regulatory regime would cause for dairy farmers, since, if animal feed from the EU and the UK were mixed up, it would be impossible for vets to certify that an animal’s milk genuinely met EU standards. In fact, a dual regime may lighten the red tape load on GB exporters, but it will increase it on Northern Ireland businesses, and all the loose talk about regulatory divergence can only make matters worse.

If the internal market Bill would have broken international law in a “very specific and limited” way, the current Bill’s breach of it is absolutely blatant and comprehensive. The noble Lord, Lord Pannick, dealt fully with this subject, as did the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Howard, and the noble and learned Lord, Lord Garnier—all of them distinguished lawyers. The noble Lord, Lord Tugendhat, recalled that Margaret Thatcher was committed to the rule of law.

It has been pointed out that Article 16 provides a legal mechanism for safeguard measures within the scope of the protocol, but the Government have declined to use this, as the noble Lord, Lord Howard, said. He recounted how the former Attorney-General told him that Article 16 was not being invoked because it only allows measures that are “proportionate”. For a country such as the United Kingdom, with its web of treaties and global connections both public and private, to be so cavalier about breaking international law is a very serious error and reputational own goal. Who in the world will trust our Government and even our businesses to keep their word in future? The noble Lord, Lord Cormack, was eloquent on this point.

The noble Lord, Lord Ricketts, warned that this is a very dangerous time internationally and a moment for unity and solidarity in the alliance backing Ukraine, not divisions between the UK and the EU. The noble Baroness, Lady Wheatcroft, warned of the effect on the financial markets. The noble Lords, Lord Kerr and Lord McDonald, noted the welcome reset in relations with the EU, with Prime Minister Liz Truss, when taking part in the inaugural meeting of the European Political Community, even able to bring herself to call President Macron a “friend”. This welcome reset would be torpedoed by this hostile Bill, and the mooted bilateral UK-France summit for next summer would surely go in the bin. With our economy in a very fragile position, the last thing we need is a trade war with the EU, and the last thing that Northern Irish traders need is the loss of ready access to the EU single market.

Other noble Lords have adequately covered how the Bill represents an almighty power grab by the Executive, as have the excellent reports from our Delegated Powers Committee, so I will not repeat that point. However, I will quote the Conservative chairman of the Justice Select Committee in the other place, Sir Bob Neill, who said,

“the reality is that there are Henry VIII powers and Henry VIII powers; and this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together”.—[Official Report, Commons, 13/7/22; col. 370.]

I also point—as did a stellar quartet of the noble Baronesses, Lady Ritchie, Lady O’Loan, Lady Kennedy and Lady Goudie—to the very legitimate concerns of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland about the impact of the Bill on the implementation of Article 2 of the protocol, the commitment by the UK Government to ensure

“no diminution of rights, safeguards and equality of opportunity”

protections as a result of the UK’s withdrawal from the EU. If the Bill progresses, that will need detailed examination.

I conclude with what the former Prime Minister Theresa May said in the other place—words widely echoed across this House today, including by the noble Lord, Lord Kirkhope:

“In thinking about the Bill, I started by asking myself three questions. First, do I consider it to be legal under international law? Secondly, will it achieve its aims? Thirdly, does it at least maintain the standing of the United Kingdom in the eyes of the world? My answer to all three questions is no. That is even before we look at the extraordinarily sweeping powers that the Bill would give to Ministers.”—[Official Report, Commons, 27/6/22; col. 63.]


We have two previous Conservative female Prime Ministers, Margaret Thatcher and Theresa May: one who cannot now give her opinion but would surely not have approved of this Bill, and another who has said that she does not approve of this Bill. The most recent previous Prime Minister did his Government and country no favours in bringing it forward. In words he might have spoken, it is time for the present Prime Minister to “donnez-nous un break”—indeed, to give herself a break by ditching it.

Northern Ireland Protocol: First Treasury Counsel

Baroness Ludford Excerpts

Thursday 9th June 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, the intention of the Government is to restore the situation envisaged at the framing of the protocol whereby equal importance was given to east-west and to north-south transactions.

[Baroness Ludford (LD)]

My Lords, the Minister referred to the absence of the Executive. It was expected that the publication of the Bill would be an incentive to create the Executive, but I understand it is being reported that the DUP has said that the publication of the Bill will not make any difference; it wants to see it implemented. How many steps have to be taken?

[Lord Stewart of Dirleton (Con)]

My Lords, we are in contact with all shades of opinion in Northern Ireland, trying to move forward the position whereby the institutions of devolved government can be restored and the process of normalising relations between communities and between the United Kingdom and its international partners can proceed.

Nationality and Borders Bill

Baroness Ludford Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I declare my interests in the register. I was much involved with the Modern Slavery Act and the review led by the noble Lord, Lord Field, so I feel I have some knowledge of this. I do not know whether the Minister, who is not at the Home Office, realises the extent to which all the non-governmental organisations of this country—including the Salvation Army, which works for the Government on modern slavery, together with the anti- slavery commissioner—deplore this part of the Bill without exception. This Minister may not know that but, goodness me, the Home Office does.

I am very concerned about children, but I heard what the noble Lord, Lord Coaker, said, so I propose to refer specifically to Clause 58. Again, because he is not at the Home Office, the Minister may not have read the statutory guidance on the Modern Slavery Act. I have it with me—it was published this month. I wonder whether the Home Office’s right hand does not know what the left hand is doing, because the requirement to be timely in providing the information needed is totally contrary to the entire work set out by the statutory guidance.

I do not want to bore the Committee, but I must refer very briefly to one or two points so the Minister can know. Under “Introduction to modern slavery”, the guidance says:

“It is important for professionals to understand the specific vulnerability of victims of modern slavery and utilise practical, trauma-informed methods of working which are based upon fundamental principles of dignity, compassion and respect.”


For goodness’ sake, does Clause 58 have anything to do with that? The guidance sets out how you should deal with identifying potential victims of modern slavery. In particular, paragraph 3.6 on page 35 states:

“In practice it is not easy to identify a potential victim—there are many different physical and psychological elements to be considered as detailed below. For a variety of reasons, potential victims of modern slavery may also … be reluctant to come forward with information … not recognise themselves as having been trafficked or enslaved”


and, most importantly, may

“tell their stories with obvious errors and/or omissions”.

One important aspect—which the Home Office on the one hand states in the statutory guidance and yet is clearly totally unaware of in relation to the Bill—is that a lot of victims who come to this country are given a story by the traffickers. That is the story they tell first, and it will not be the truth. Just think what will happen to them consequently under Clause 58. They will be treated as liars who have not given accurate information. Through the NRM—imperfect though it is—they will probably have got to reasonable grounds, but then they will get this appalling notice and find themselves not treated as victims. This is totally contrary to the Modern Slavery Act. It is totally contrary to the best of all that has happened in this country, in the House of Commons and this House, which will be ruined by this part of the Bill.

Having worked in this sector since about 2006, I am absolutely appalled that the Government think they are doing a good thing in putting this part of the Bill forward. For goodness’ sake, will they for once listen and get rid of it?

[Baroness Ludford (LD)]

My Lords, I will speak to Amendments 153 and 155 in the name of the noble Lord, Lord Dubs. Before I do so, I fully associate myself with the powerful words of the noble Lord, Lord Coaker, and the noble and learned Baroness, Lady Butler-Sloss. The only correction I will make to the noble Lord is that the Modern Slavery Act originated in the coalition Government, and we had a Liberal Democrat Minister in the Home Office in the person of my noble friend Lady Featherstone, who was here earlier.

Group 1 covers amendments and proposed deletions to very objectionable clauses, as we have heard. Clause 57 shifts the onus from the state to the potential victim to identify themselves and possess the relevant expertise to know what information is relevant to a slavery and human-trafficking determination. There is no provision for the specified date for supplying the information to be reasonable, or for whether and how an extension could be granted. Can the Minister say whether there will be guidance on these matters? As the noble Lord, Lord Coaker, asked, will notices be served on all asylum applicants or only on some? There would be potential for these notices to be discriminatory, in breach of the European Convention on Human Rights, if they were served only on certain categories of people. What criteria will be used if only certain people will get these notices?

There is no clarity or guidance as to what might be considered good reasons for why information has arrived late. Vulnerable or traumatised victims might take time opening up; they might well be unfamiliar with the legal process, or they might not realise that a particular detail was relevant until later. There at least needs to be guidance on what constitutes good reasons to improve legal clarity and certainty, otherwise Amendment 154 from the noble Lord, Lord Coaker, needs to be accepted.

On Clause 58, the Court of Appeal in a 2008 case said that the word “potentially” should be included if the decision-making authority were required to assess late supply of information as damaging to credibility. Hence, Amendment 153, inspired by the Joint Committee on Human Rights, changes “must take account” to “may take account” as potentially damaging to credibility. Amendment 155 would amend Clause 58 so that it does not apply to child victims or victims of sexual exploitation, similar to Amendments 151D and 152 from the noble Lord, Lord Coaker.

The bottom line is that Clauses 57 and 58 should not be in this Bill and, as has been said, Part 5 as a whole should not be in this Bill. They are arguably in breach of both the European Convention on Human Rights and the Council of Europe Convention on Action against Trafficking in Human Beings.

I think that my noble friend Lord Paddick will refer to the worries of the Independent Anti-Slavery Commissioner—we are all very conscious of this matter. Indeed, Dame Sara Thornton has a comment article in the Times today, to which I shall refer in a later group. She has been very active, not least in briefing the JCHR and outlining her extreme worries, and we have heard from the noble and learned Baroness, Lady Butler-Sloss. The whole of the sector believes that this tightening up, to the disadvantage of vulnerable and traumatised victims of human trafficking and slavery, is wholly inappropriate.

[Lord Henley (Con)]

My Lords, I have not yet spoken on this Bill—I missed the Second Reading for reasons beyond my control—but, like the noble Baroness, Lady Ludford, and the noble Lord, Lord Dubs, I am a member of the Joint Committee on Human Rights, which issued a number of reports on the Bill. I want to refer to the 11th report, covering Part 5, where we unanimously, as a committee, came forward with a number of recommendations. I hope that the Committee will bear with me—bearing in mind the strictures of the Chief Whip a day or two ago—if I make a brief intervention on this to support those amendments in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Dubs. The noble Baroness was speaking to Amendments 153 and 155, but all of us are also, to some extent, in support of all the other amendments, and take note of everything that the noble and learned Baroness, Lady Butler-Sloss, said.

I offer my thanks to the noble Lord, Lord Coaker, for his very kind words about all the work my right honourable friend Theresa May has done on modern slavery over the years. I served briefly in the Home Office, as I have served briefly in a great many departments, before I was moved on—as happens so often. I know from when I served with my right honourable friend just how seriously she took this issue—she treated it as important even before she became Home Secretary. She was a member of the shadow Cabinet in the run-up to the 2001 election and then continued with this work beyond. She will be grateful for everything the noble Lord, Lord Coaker, has said. If I do not pass it on to her, I am sure she will read Hansard.

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[Lord Deben (Con)]

I am sorry to remove my mask, but I am told in the Climate Change Committee, of which I am chairman, that we have to have a British ETS which is not aligned with the rest of Europe because that is what we want. Why does it apply to climate change but not to modern slavery? On both of those issues we are in advance and wish to continue to be in advance. I do not understand this alignment element.

[Baroness Ludford (LD)]

Can I join the maskless crew? Surely international law, and certainly EU directives, are usually a minimum requirement, so if we wanted 45 days and a European instrument said 30, that is brilliant; it is better. It at least complies, so what is the problem?

[Lord Stewart of Dirleton (Con)]

I hear from all sides of the Chamber, including from the noble Baroness, Lady Chakrabarti—

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[Baroness Ludford (LD)]

My Lords, I want to speak to the JCHR amendments in this group in the name of the noble Lord, Lord Dubs. Those were very strong words from the noble Lord, Lord Coaker, and I found them extremely persuasive, including his remarks on one-nation conservatism. I see the noble Lords, Lord Fowler and Lord Deben, in their place, and I commend the speech of Sir John Major today, which I have followed a little on Twitter.

Amendment 159 was inspired by the JCHR and seeks to remove the discretion around whether a person who has a positive reasonable grounds decision and a conclusive grounds decision pending could avoid removal. Instead of saying that the competent authority “may determine” that removal should not take place, if that is appropriate in the circumstances of the case, we suggest it “must”.

Clause 59 has already changed the Modern Slavery Act so that we are talking about people who “are” victims of slavery or human trafficking, not those who “may be”. Therefore, it is surely right that such victims, who have been given an additional positive reasonable grounds decision for new or more recent slavery or trafficking allegations, must not be removed.

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[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for that intervention. I was proposing to deal later with the expression “bad faith” and its source, but, to help him at this stage, it is not drawn from any comparable legislation, nor from the authority of the courts. We do not hark back to that. Rather, the nature of the problems that must be confronted in relation to this is sufficiently protean and diverse that a need was identified to arrive at a broad expression in the Bill, and “bad faith” was the language selected after consideration among Ministers and officials to represent that.

[Baroness Ludford (LD)]

I am sorry to interrupt the Minister, but I now realise that he has now moved on from Clause 61 and is talking about Clause 62. I was wondering whether he was going to answer my point about incompatibility with the ECHR memorandum. That says that

“where the person’s previous conclusive grounds decision was negative, the Secretary of State will be required to make a new conclusive grounds decision on the new referral, and the person will be protected from removal in the meantime, ensuring compliance with Article 10(2) of ECAT.”

However, you are not protecting them from removal in the meantime under Article 61, as far as I can see, so how is the Bill compatible with the ECHR memorandum?

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[Lord Stewart of Dirleton (Con)]

The point I was seeking to make by that expression is, I think, the same one that my noble friend Lord Wolfson of Tredegar made earlier, when he spoke about this—it is as familiar to the noble Baroness as a practising barrister as it is to me, and I think it was referred to by the noble Baroness, Lady Hamwee. If we have a list that sets out heads A to E, and then counsel attempts to rely on point F which is not otherwise comprehended, or not specifically enumerated but which may be comprehended within the expression “or any other circumstance”, that always—as my noble friend Lord Wolfson said—places counsel at a disadvantage.

On the threats, or potential threats, and the potential scope for abuse which lie within the power of a person seeking to exploit and make a false application under these circumstances, what we are seeking to do is to identify a phrase or term which is sufficiently wide to encompass all those potential points. Noble Lords in the Committee have identified, under reference to the traffickers and criminals whom it is the intention of the entire Committee to thwart, their cunning, resilience and resourcefulness in finding ways to slip between the cracks of aspects of legislation.

Amendment 169 does not provide a definition of “public order”. I reassure the Committee that we adhere to relevant provisions in our international obligations but it is unnecessary to specify that in legislation, and we are satisfied that the current definition of public order complies with ECAT.

My noble friend Lady McIntosh of Pickering proposes that we replace the “bad faith” provision with one of “improper claims”. That proposal can be addressed in conjunction with Amendment 163, which seeks to remove the bad faith provision entirely. Another reason for the expression “bad faith”, and its breadth, is to avoid inadvertently excluding administrative mistakes made when submitting claims, which may be interpreted as falling under “improper claims”. We believe that “bad faith” is the appropriate language.

In answer to submissions made by the noble Lord, Lord Coaker, under Amendments 169, 161 and 164, which seek to exclude children from this clause, ECAT does not specify an age limit. We deem it important that the United Kingdom maintains the full scope while ensuring that all decisions to withhold the protections of the NRM are balanced against our priority to safeguard children. The proposal set out in these amendments would create, in effect, a two-tiered system that could encourage those looking to misuse the NRM protections to provide falsified information regarding their age. We all sat late enough the other night in relation to the age amendment provisions elsewhere in the Bill for me not to wish to go into that area again, but we are concerned lest the proposals in the amendment provide an opportunity for persons to provide falsified information.

In relation to Amendment 168, the Government are aware that potential and confirmed victims of modern slavery may already have been convicted of serious offences or be involved in terrorism-related activity. I make it clear that neither the additional recovery period nor the public order disqualifications can be taken as being a blanket disqualification. Any decisions relating to disqualifications will be taken on an individual basis, taking into account the individual’s circumstances and vulnerabilities. This includes consideration as to the nature of any criminal exploitation that may have been made of them and the need to safeguard individuals. We think it is right that further details of how to apply this discretionary element should be set out in guidance for decision-makers rather than being placed in the Bill. That will give the Government the flexibility to meet the needs of victims and respond to changing patterns of criminal activity that may seek opportunities to misuse the NRM.

We do not consider that Clause 62 will present a barrier to people who have had convictions and prevent them coming forward, because of that discretionary approach and because there will not be a blanket disqualification on the basis of public order. All of us—the whole Committee, I am sure—want victims of modern slavery to continue to come forward for identification and support, irrespective of their personal circumstances or the circumstances in which they came to be exploited. However, we maintain that it is right that the Government can remove individuals who pose a threat to public order from the protections and support that the NRM affords.

Together with the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Ludford, was concerned lest such victims did not come forward if they had criminal convictions. First responders should still always refer victims into the national referral mechanism, in line with modern slavery statutory guidance, even where the individual has had a previous recovery period or has a criminal conviction. Decision-makers trained in the field will then carefully consider each individual case and take into account specific vulnerabilities and the needs of each individual, again on a case-by-case basis.

The recovery period may be withheld following a reasonable grounds decision, and the rights that flow from a conclusive grounds decision may also be withheld at that stage if relevant disqualifications apply. I emphasise that we will carefully consider each individual case to ensure that people who genuinely need protection and support will receive it. I reiterate that it is right that we should be able to withhold rights from individuals where appropriate—for example, from those who pose a national security risk to the United Kingdom.

I return to the matter raised by the noble Baroness, Lady Ludford, in relation to compatibility with the European Convention on Human Rights. The protections of the NRM will be withheld in accordance with Clause 61 only when so to do would be compliant with our international obligations—

[Baroness Ludford (LD)]

I am glad to hear that the Government want to comply with our international obligations—some of us feel that that is not entirely evident from the Bill—but I was asking about compatibility with the European convention against trafficking. Clause 61 allows “a competent authority” to remove someone even when a conclusive grounds decision is pending. I am sorry to repeat myself, but the European Convention on Human Rights memorandum, produced presumably by the Home Office for the Bill, says at paragraph 76.d:

“the Secretary of State will be required to make a new conclusive grounds decision on the new referral, and the person will be protected from removal in the meantime, ensuring compliance with Article 10(2)”.

That is not what Clause 61 does; it allows the Government to remove the person. They are not “protected from removal” pending a new conclusive grounds decision, so the ECHR memorandum and the Bill are in direct contradiction. Can the Minister take further advice and answer that point? If he cannot do so today, I am sure that he will be able to write to me. I am pretty sure that this was identified by the Joint Committee on Human Rights, which is why we wanted to change “must” determine the person’s removal to “may”, so that there is wiggle room that might be in compliance with ECAT. On the face of it, I cannot see that this provision is compliant, notwithstanding the assertion in the memorandum that it is.

[Lord Stewart of Dirleton (Con)]

The noble Baroness graciously affords me the possibility of replying perhaps in more detail and later. Unless I have further information to provide to her, I propose to take that course. I am obliged to her for her consideration.

In relation to how to assess whether a person is involved in terrorism-related activity or is otherwise a national security concern, the Government have extensive experience of assessing these things, together with our operational partners, and using these assessments to inform executive decision-making.

Whether there are reasonable grounds to suspect that a person is or has been involved in terrorism-related activity is a crucial part of consideration for public order disqualification. Amendment 165 would weaken the United Kingdom’s ability to withhold protections from people of terrorism concern, and we therefore consider that it would increase the risk to the national security of the UK.

Regarding Amendment 166, NRM referrals for foreign national offenders and foreign nationals held on remand are rising, with an average of 85 per month for the first five months of 2021, compared to 19 per month in 2018. It is right that foreign nationals who have been convicted of the serious offences referred to in Section 32 of the UK Borders Act 2007 should be included within scope for consideration of the public order disqualification. This ensures that we will have a clear definition provided for in legislation to support decisions.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, my noble friend Lord Paddick has his name to Amendment 170. I know that he—I join him in this—is always pleased to have an opportunity to support the noble Lord, Lord McColl of Dulwich. Given that we are now past 4 pm, which, in the terminology of this House, was to be the lunch hour, I will not say anything more on this amendment. I hope that noble Lords can read between the lines.

Similarly, I particularly support Amendment 171A in the name of the noble Lord, Lord McColl, for reasons to which the noble Lord, Lord Alton, referred.

Finally, when I bumped into the noble Lord, Lord Morrow, the other day, I said, “I don’t know what you’re going to say but I’ll support you”. He said, “I thought you would”.

[Baroness Ludford (LD)]

My Lords, we have been quicker than I anticipated but what my noble friend said is true; I must admit that I am starving.

I will speak to Amendments 171 and 172 from the JCHR, in the name of the noble Lord, Lord Dubs. They aim to remove the worst of Clause 64. Leave to remain is important for victims who are vulnerable to destitution and further exploitation without welfare benefits and other entitlements but, according to the anti-slavery commissioner, the number of victims being granted discretionary leave is very low. In 2015, it was 123. In 2019, it was 70. In the first three months of 2020, it was only eight; we do not have statistics for the whole of 2020-21.

Being granted leave can improve mental health by offering stability and thus a chance of recovery, but the equivalent reference to assistance and support in the Modern Slavery Act reads “physical or psychological harm”; that includes social harm. This Bill would put the law out of line with that and raise real doubts about compatibility with Article 14 of ECAT, which uses the phrase

“necessary owing to their personal situation”.

That is wider than what is in Clause 64(2)(a), which is why I commend Amendment 171 to the Committee. I was pleased to hear the noble Lord, Lord Morrow, refer to the JCHR’s report; he also mentioned the importance of family relationships.

Amendment 172 aims to rectify the omission from Clause 64 of any consideration of the best interests of the child so as to make it compatible with ECAT and the UN Convention on the Rights of the Child. I seem to have mixed up my notes; I am sorry about that because I will now go back to Amendment 171.

In a case last year, the High Court held that refusing to grant discretionary leave while a slavery victim’s asylum application was being processed violated Article 14 of the European Convention on Action against Trafficking. It appears that, before amendments were made in the other place, Clause 64(2)(a) included a reference to the victim’s social well-being as well as their physical and mental health. However, it was removed on Report. Can the Minister explain why? Would the Government like to rectify this omission in the Bill regarding personal, situational and social harm so as to make me, the noble Lord, Lord Dubs, and the JCHR very happy?

[Lord Coaker (Lab)]

My Lords, in the interests of time, let me just say respectfully to the noble Lord, Lord McColl, whose amendments I have signed, that I very much support him and the arguments and points that he made so well. We look forward to the Minister’s response. I pay tribute to the doughty work the noble Lord has done over a number of years to try to move the Government in what many of us regard as a simple and sensible way forward. Let us hope.

I shall speak to my Amendment 171AA. Clause 64 provides for limited leave to remain

“if the Secretary of State considers it is necessary for the purpose of (a) assisting the person in their recovery from any physical or psychological harm … (b) enabling the person to seek compensation”—

unless this can be done outside the UK

“or (c) enabling the person to co-operate”

with law enforcement. The standard, however, does not meet the UK’s obligation to children under the Council of Europe’s Convention on Action against Trafficking. Article 14.2 of ECAT specifies that in the case of children, residence permits

“shall be issued in accordance with the best interests of the child.”

Paragraph 186 of the Explanatory Report to ECAT explains that

“the child’s best interests take precedence”.

Amendment 171AA, which is a probing amendment, simply asks why the Government cannot include leave to remain where children are protected and where it is in the best interest of the child.

Crown Courts: Outstanding Cases

Baroness Ludford Excerpts

Thursday 15th April 2021 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat the answer given previously: the department does not collect specific data on the level of offending by defendants on court bail. However, as the noble Lord is aware—and as Members present may not be aware—the commission of a crime on bail is itself an aggravation, which will be reflected in the sentence.

[Baroness Ludford (LD) [V]]

My Lords, the recent Constitution Committee report pointed out that, because of delays to the courts reform programme, improvements to IT systems had not been sufficiently implemented by the time of the pandemic, meaning that remote hearings relied on antiquated systems and participants in the criminal and family courts in particular struggled with virtual hearings. How do the Government intend to supply adequate investment in training in IT while also guaranteeing fairness for all through physical participation for those for whom remote hearings are not a solution?

[Lord Stewart of Dirleton (Con)]

My Lords, we acknowledge that, in many cases, participation by way of remote hearings is valuable for people in such positions. None the less, we also appreciate that it is not appropriate for all such people, whether they be witnesses or complainers in cases.

Human Rights Act 1998 (Remedial) Order 2019

Baroness Ludford Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Ludford (LD)]

I am pleased to see the Government taking action to be compliant with the convention and the Strasbourg court judgment, since they have sometimes not been flavour of the month. I also welcome the observation in the response last year to the JCHR report that,

“the HRA performs a special role in ensuring that an effective remedy is available domestically for a human rights breach without needing recourse to”

the European Court of Human Rights. That is also a welcome endorsement of the Human Rights Act, which is also sometimes questioned in certain political circles.

When I listened to Mr Tony Abbott, the former Prime Minister of Australia, yesterday before the Foreign Affairs Committee in the other place, if I heard him right, he seemed to say that from next year the UK Government would not have to pay any money to the Council of Europe. I think that must have been a confusion with the EU Council of Ministers because, after all, the Council of Europe is not an EU body. I did a double take, because he is apparently about to become trade adviser to the Trade Secretary so does he know something that I do not? Are the Government going to pull out of the Council of Europe? I think it must have been a slip of the tongue.

The noble Lord, Lord Blunkett, and my noble friend Lord Thomas of Gresford understandably questioned whether a remedial order rather than primary legislation is absolutely justified in this case. After all, the Hamilton case was in 2016 and the Government’s first draft of this order was in 2018, so to say that this has been done swiftly is a bit of a stretch.

The Government’s original draft was criticised by the JCHR as a very narrow technical fix, and it wanted a wider application so that the order would remedy incompatibilities with Article 13 fully, namely by providing for damages to be payable for the breach of the convention right arising from a judicial act done in good faith. Where there is no other remedy available, that would be effective for the purposes of Article 13 where a judge considers that it is just and appropriate to award damages. It seemed to me—but perhaps the noble Baroness, Lady Massey, is better informed—that the Government have only partially accepted the advice of the JCHR and redrafted the order to, in the words of the Minister, “slightly widen” the scope of its original draft to cover any circumstances in which a judicial act done in good faith has breached Article 6 and has led to imprisonment or other detention. So they have gone wider than the constraint of “only in the context of contempt proceedings where the person is deprived of legal representation and sent to prison”, but only to some extent where the Article 6 breach has resulted in unjustified detention.

Can the Minister therefore explain precisely why the remedial order cannot be widened further in scope to cover an award of damages in case of any violation of a convention right where there is no other effective remedy? The Ministry of Justice has in its submission stressed the importance of judicial immunity and independence, which is very welcome given the mud slung at judges in the past few years. We remember the slowness of the then Lord Chancellor in speaking up against the disgraceful “Enemies of the People” headlines over the Article 50 litigation. There were also very bad headlines over the prorogation judgment.

I am pleased to see the Government’s confirmation, in their response, that

“an independent and impartial judiciary is one of the cornerstones of a democracy”

and that, in a letter that a then Minister at the MoJ sent to the Joint Committee on Human rights, it was noted that

“proceedings may be brought”

under the HRA

“for breach of a convention right by way of an appeal or an application or petition for judicial review.”

Given that, in a Written Statement yesterday, the Justice Secretary elaborated on the Government’s review of administrative law, which is intended to advise on “reform of judicial review”, complacency about the availability of judicial review in the future would be out of place.

Lastly, I look forward to the Minister’s reply on why this measure cannot be somewhat wider so that there is redress where a judge has made sufficient errors to violate human rights. It is a step forward but it is still incomplete.

Probate Service

Baroness Ludford Excerpts

Monday 27th July 2020 Lords Chamber

Asked by

[Baroness Ludford]

To ask Her Majesty’s Government what assessment they have made of (1) the operation, and (2) the resourcing, of the Probate Service; and what plans they have to remedy any issues identified.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, current waiting times in the probate service are within expected timeframes, but we expect that to come under pressure as case receipts rise. The service has continued to operate effectively, despite the pressures faced during the Covid-19 pandemic. Additional resources have been, and continue to be, put in place by Her Majesty’s Courts & Tribunals Service to prepare for additional demand following the increase in the overall death rate.

--- Later in debate ---

[Baroness Ludford (LD) [V]]

I thank the Minister for that Answer, but his claims do not mesh with my experiences or those of others. I appreciate that, like other service providers, lockdown has caused challenges for the probate service, but its problems of resourcing and organisation go deeper than that. It was already in the midst of an apparent restructuring. Press articles last month on the chaos experienced by relatives mirror my own saga. I received misinformation, and calls and emails went unanswered. Finally, my husband’s will, which had been deposited with the service, could not be located for a very worrying few weeks—almost a subject for the theatre of the absurd. Only once I had gone on Twitter was my case solved. People who are grieving deserve better treatment than many are getting, not least from the probate service.

[Lord Keen of Elie [V]]

My Lords, I very much regret the personal experience that the noble Baroness, Lady Ludford, suffered. However, particularly during the present crisis, the probate service is working effectively. There was a move in the last year to a digital system. That is bedding in and proving successful. Indeed, the average waiting time for a grant of probate in the period January to March this year was about four weeks.

European Union (Withdrawal Agreement) Bill

Baroness Ludford Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Keen of Elie]

It would always be a proper use of this House’s power, albeit there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.

[Baroness Ludford (LD)]

The Minister has just said that this would improve consistency. How can it improve consistency in the interpretation of law if you potentially have a proliferation of lower courts that can all reach different judgments? The import of the objections made in the last hour is precisely that having just the Supreme Court, and the High Court of Justiciary in Scotland, is much more a recipe for consistency than what the Government are planning.

[Lord Keen of Elie]

That is one view as to how we might achieve consistency. However, as the noble Baroness, Lady Ludford, will have noted from the contributions made by a number of noble Lords and noble and learned Lords—in particular the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Mackay of Clashfern—there are diverse views as to how this could be achieved.

For example, one view is that the power should rest only with the Supreme Court and the High Court of Justiciary but that there should be a reference process. Another view is that the power should be conferred upon the Court of Appeal, a lower court, or the Inner House in Scotland, because that would assist the Supreme Court as and when it came to consider the matter, and speed up the whole process of determining the issue. There are diverse views, as is reflected in the report of the Constitution Committee, as to how this could best be achieved. That is a very compelling reason for taking this regulatory-making power in order that, with the appropriate consultation, we can come to a suitable consensus as to how this is best done in the future. We can then allow for flexibility.

I stress that if, for example, we left the power purely in the hands of the United Kingdom Supreme Court, that might assist in consistency of decision-making—I will come back to the question of precedent in a moment—but it would put immense pressure on the Supreme Court itself and potentially create significant delays for litigants. Given that, it would not be a recipe for certainty; rather, it would be a recipe for uncertainty.

As I say, there are diverse views on how we can best achieve the result that we are all seeking. That is why it is appropriate that we should pause, take the matter forward by way of regulation, consult with the appropriate parties and then determine the best means of doing this. That will have to be resolved before the end of the implementation period.

At the end of the day, the power can be used only to determine which courts can depart from retained EU case law, the circumstances where they may do so and what test may be applied in doing so. It will not be used to set out how the courts are to interpret retained EU case law, because that is a matter for the independent judiciary, and it will not determine that courts may not follow established EU case law.

The noble Lord, Lord Anderson of Ipswich, made a number of points about unleashing uncertainty. With the greatest respect, Section 6 of the existing 2018 Act already provides that the Supreme Court may depart from established EU case law, although it may take significant time before it comes to address a particular question in a particular case. There is, therefore, what he referred to as “uncertainty with effect from now” if we proceed purely on the basis of Section 6.

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

Baroness Ludford Excerpts

Monday 11th March 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I am as bereft of inspiration for novelty of thought as other noble Lords, such as the noble Lord, Lord Armstrong, and the noble Baroness, Lady Crawley, have expressed themselves to be this evening. In any case, I fully agree with the substance of what many other noble Lords have said, not only my usual suspects, such as my noble friends Lord Newby and Lord Thomas of Gresford, the noble Lords, Lord Hannay and Lord Kerr, and my fellow ex-MEPs, the noble Baronesses, Lady Crawley and Lady Quin—including the latter’s much-appreciated warm tribute to Simone Weil—but much of what was said by the noble Lord, Lord Finkelstein, strongly resonated with me, as did almost everything said by the noble Lord, Lord Armstrong.

We are in the middle of the theatre of the absurd. The Prime Minister is in Strasbourg negotiating the finer points of the backstop, on the basis, as my noble friend Lord Thomas said, of the reasonableness of the man on the number 87 bus. We heard reference to “Waiting for Godot” from the noble and learned Lord, Lord Goldsmith, and to a combination of “Dad’s Army”, “Blackadder” and Carry on Brexit from the noble Lord, Lord Bridges. Even as a child, I was never a fan of “Through the Looking-Glass” and I do not think that anyone can be a fan of the way that the Prime Minister is behaving now.

This is now not just a Brexit crisis but a constitutional crisis. That this Government have trashed our country’s reputation for good governance and for being stable and orderly is self-evident. We have had Cabinet irresponsibility as well, as the noble Lord, Lord True, said. I agree with him on that—maybe only on that. The UK has been made into a laughing stock for being a dysfunctional and out-of-control basket case. Like the noble Lord, Lord Cormack, I will remember the noble Lord, Lord Armstrong, expressing his shame at the situation. The noble Lord, Lord Inglewood, pointed out the contrast between this out-of-control situation and the slogan “Take back control”. It is quite ironic.

I agree with the noble Lord, Lord Bridges of Headley, that the responsibility for this situation lies squarely with this Conservative Government and Conservative Party. It does not lie, as the noble Lord, Lord Howard, and latterly the noble Lord, Lord True, suggested, with remainers. It never has and it never will.

Even worse, the UK’s reputation for being a reliable negotiating partner and for acting in good faith has been thrown on the scrapheap, which is ironic given the reproach to the EU over the backstop and its good faith over exiting that mechanism. As my noble friend Lord Newby noted, towards Parliament the Prime Minister has acted through sleight of hand and abuse of process, and even with sharp practice.

Not only that, the UK’s respect for the rule of law and due process has been put seriously in doubt. The noble Lord, Lord Howard, regrets that we are following the Article 50 process of the treaty that we ratified and consented to be bound by. Many noble Lords believe that the Shamima Begum case also raises doubts about the Government’s observance of the rule of law and, one could add, their respect for another Commonwealth country: Bangladesh. These seem strange messages to be sending as the 70th anniversary of the Commonwealth is celebrated.

There are also serious questions about this Government’s real respect for the people and the trust that is necessary for democratic governance. We have heard much about how, if Brexit is not delivered, public trust will be destroyed. Apart from the fact that most of the public are watching in appalled disbelief, if they have not switched off entirely, it is ridiculous to say, as the noble Lord, Lord Bridges, did, that the “democratic imperative is to deliver on the wishes of 17.4 million people who voted to leave”. Apart from the fact that the Brexiters cannot decide precisely what those wishes are, it is typical disregard of the majority of our population, who either voted remain, did not vote at all or have come on to the register since 2016. I share the anger of the noble Lord, Lord Rooker, at the way all these groups have been ignored.

How can a Government who insist that they must deliver Brexit also insist on holding over the people the threat that they may not be able to deliver their food and medicine? The noble Lord, Lord Dobbs, pursued the theme that the EU is punishing us. It is not punishment to be denied, as a non-member, the benefits of membership. You would have thought that fairly simple to understand. On the contrary, it is cakeism to expect to continue to enjoy all the privileges without all the obligations. The noble Lord, Lord Bridges, was right to say there was a lack of honesty about the need to make choices in the trade-off between economic advantages and sovereignty.

I give your Lordships as a prime example of the effrontery of Brexiters refusing to recognise that you cannot have it all the article in today’s Evening Standard by former Minister George Eustice. Free movement has been demonised by the Brexiters. The Prime Minister enthusiastically took up that cause; indeed, she cited it as the top achievement of her withdrawal agreement that free movement would end, ignoring that free movement is enjoyed by many British people. George Eustice is a keen leaver who has just resigned as a Minister to champion a hard no-deal Brexit, but in today’s Standard he writes:

“Think of the waitress who served you coffee today, the cleaners working late tonight, the care worker who will help your grandmother start the day tomorrow or the farm worker who has been out in the rain to put fresh vegetables on your table. Do we value these people and the work they do?”.


Yes, remainers value these people. He concludes that we need a scheme for lower-skilled, not just high-skilled, employment, which is precisely what we have enjoyed for all the years of EU free movement. You really could not make it up.

The Justice Minister Rory Stewart said at the weekend that every alternative to May’s deal is unknown and uncertain. That is not true. We know what we have as a member of the EU. To some extent, we also know what no deal means: huge chaos, cost and extra bureaucracy. The thing we do not know much about is what the future relationship will be, as it is largely a blindfold Brexit. The only honourable thing for the Prime Minister to do now is to put the matter back to the people to choose between her package and the known known we enjoy now. That, of course, needs an extension, which sounds, according to tweets, almost in the bag, with only the length of that extension in question. The Prime Minister thus has a last-minute chance to redeem some of her and her country’s reputation by doing the right thing during that extension.

Brexit: Withdrawal Agreement and Political Declaration

Baroness Ludford Excerpts

Monday 14th January 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, normally I would try to reflect speeches from across the House in my winding-up, but this evening I will concentrate on the Liberal Democrats. This is partly because the loss of our late colleague Lord Ashdown is much on our minds. Obviously the primary grief is felt by Jane and the family, but we too, his political family, are nothing short of devastated. We badly miss his voice. Tweets of Paddy’s from two months ago remain online; I am afraid they are not complimentary about the governing party, saying,

“and so our beloved country is once again held to ransom by squabbles in a Tory Party who give rats in a sack a bad name”,

and,

“the great unravelling begins. If you want a playbook for what next, look to the Tory civil wars of the Com Laws in 1846”.

The fact is that, unlike Liberal Democrats, whose hallmark is openness to the world, Tories have long been split between international and insular tendencies; that continues today. Some talk, admittedly, about “global Britain” but this seems more about resurrecting the Empire—or at least the Anglosphere—than a true spirit of international and multilateral co-operation. Modern Liberal Democrats can still subscribe to the words of the radical Liberal Richard Cobden, who cited among the benefits of repeal of the Corn Laws that,

“it would introduce through mutually advantageous international trade a new era of international fellowship and peace”.

That sentiment endures, both as the rationale for the European project after 1945 and in the DNA of the modern Liberal Democrat party; no wonder the two are so well-aligned. As my noble friend Lord Wallace of Saltaire said last week, a global Britain should be within, not against, a global Europe. Hence one of Paddy’s successors, my noble friend Lord Campbell of Pittenweem, insisted in this debate last Wednesday:

“I am passionate about remaining in the European Union. I venture to observe that I am just as passionate about remaining as those who are passionate about leaving. I respect their passion and, in turn, I expect them to respect mine”.—[Official Report, 9/1/19; col. 2281.]


Another previous leader, Jo Grimond, in his book The Liberal Future 60 years ago, wrote:

“Liberals dissented from the original decision not to take part in the Iron and Steel Community. A Liberal foreign policy towards Europe would be based on the firm belief that Britain is a part—a leading part—of Europe”.


But it was not just Liberals in our Liberal Democrat heritage who carried the flame for Europe. My noble friends Lord Rodgers of Quarry Bank and Lord Taverne came via the Labour Party and the Social Democrats. They reminded us in this debate how they were part of that brave contingent of 69 MPs who defied the Labour leadership and its three-line whip to vote to join the then European Community in 1971. My noble friends Lord Wrigglesworth and Lord McNally, also once SDP, stressed internationalist principles too. They were led by Roy Jenkins, later our Liberal Democrat Leader here in Lords. In the epilogue to his European Diary as President of the European Commission, Roy recounts the formation of the SDP, noting simply and unremarkably that,

“the SDP and its Alliance partner maintained a wholly committed European position”.

Roy Jenkins also harks back much farther in our political roots when, in his biography of William Gladstone, he quotes from Gladstone’s Midlothian campaign, when he was much concerned about atrocities in the Balkans against Bulgarians and Montenegrins. Gladstone, he records, spoke of a,

“nation called to undertake a great and responsible duty”,

in regard to “the peace of Europe” and the need for,

“right and justice to be done”.

These are uncanny echoes of Paddy Ashdown’s insistence that we had to take an interest in the Balkan wars of the 1990s and take on a responsibility to protect in particular the Kosovars and Bosnians being subjected to ethnic cleansing on our continent.

In her very generous comments about Paddy Ashdown in her debate on the western Balkans last Thursday, the noble Baroness, Lady Helic, said:

“During the Bosnian War in the 1990s, most politicians, including some from my own party, pontificated from a distance. Lord Ashdown went in and out of Sarajevo during the longest siege in modern history, across a risky mountain route and through a tunnel burrowed into the city”.—[Official Report, 10/1/18; col. GC 265.]


Hence, when my noble friend Lord Wallace of Saltaire wrote a slim Penguin tome for the 1997 election called Why Vote Liberal Democrat?, in words he could repeat today, he wrote:

“Nostalgia for an imperial past, combined with hostility to closer cooperation with Britain’s neighbours, offers no credible way forward ... Liberal Democrats are internationalist by instinct and by intellectual conviction ... We believe that Britain can achieve more through sharing sovereignty and pooling power than by standing alone ... Britain is a European country. Our international interests and responsibilities start with our concern to promote peace, stability and prosperity within Europe, in partnership with our European neighbours”.


Another consistent theme of the Liberal Democrats is social justice. My noble friend Lord Steel of Aikwood, yet another former party leader, said in this debate:

“In the light of the last referendum result, the Government should also pledge themselves to remedying the real grievances in parts of the country that have felt neglected over many years”,—[Official Report, 9/1/18; col. 2249.]


while 25 years ago, in his book Beyond Westminster, Paddy observed how Britain—like now—was in,

“a profoundly depressed and bewildered state”,

with,

“a sense of hope that has died and a leadership that has failed”,

and,

“a dangerous mood of fatalism—a loss of national self-confidence and even self-respect”.

That is why on these Benches we insist not only that there is a better option than any kind of Brexit, which is to remain, but that British politicians should then turn our energies to remedying through our domestic efforts the grievances, loss of hope and anger at being neglected that Brexit will make worse.

We are outraged not only by the shabby treatment this Tory Government are meting out to the 5 million EU and UK “free movers” but by the extraordinary way the Prime Minister has trumpeted as her number one achievement that free movement will end. She seems totally unable to appreciate that she is tearing away from Brits, young and old, one of the greatest benefits of the EU: the ability and freedom to move around Europe to work, study or retire. That is, unless they are rich enough to purchase residence or a passport in another EU country, as perhaps some in this House are.

Liberal Democrats make no bones about it. We hope that in a people’s vote—a final say—the British people will choose to remain, with all they know now three years on. This party, our predecessors, our leaders and our members are united in believing passionately, as we always have done, that nothing can be as good as EU membership. To hijack Martin Luther, we cannot and will not recant anything, for to go against conscience is neither right nor safe. Here we stand, we can do no other. Indeed, we can do no other than support the Motion in the name of the noble Baroness, Lady Smith of Basildon.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am pleased to close this debate on behalf of the Government. I thank noble Lords on all sides of the House for their contributions to this debate. It is a mark of the role of this House that even at this hour, the House is in its present form and so full as we conclude such an important debate on such a fundamentally important issue.

Trust and compromise. If we do not trust those with whom we engage, there really can never be room for compromise. If we have no means to compromise, we will find it impossible to achieve consensus. Trust and compromise. I am not a supporter of the idea of referenda. Like the noble Lord, Lord Stephen, I experienced at first hand the referendum on Scottish independence. It was attended by division, exaggeration and overstatement, and was immediately followed by demands for a second referendum that have persisted ever since. But this Parliament decided that the question of whether or not we remain or leave the EU should be put to a referendum. No one forced parliamentarians to do that. They passed an Act for the referendum by an overwhelming majority. They did not concern themselves overly at the time with the precise terms in which they were going to put that to the people—they were simply determined that it would go to the people.

Then they went to the people in a general election, and both principal parties put it forefront in their manifestos that they would respect the result of the referendum. Thereafter, this Parliament passed an Act to authorise the Executive to serve the Article 50 notice, which under international law would determine our membership of the European Union. Then, this Parliament passed the European Union (Withdrawal) Act, which defined the exit date for us to leave the European Union as 29 March 2019. So it was this Parliament which determined, both at the level of international law and in domestic law, that our exit from the European Union would take place on that date.

There followed two years of negotiations. In some places I hear those negotiations belittled. They were carried out by officials working to their instructions and performing to the best of their ability. Perhaps some would be prepared to acknowledge that, whatever the outcome of their actual negotiation. Without the withdrawal agreement I simply remind noble Lords that we do, under the law that this Parliament made and implemented, leave the European Union on 29 March of this year. That should be at the forefront of everyone’s mind.

We have heard reference to alternatives and mention of Labour’s six points. I was going to refer again to the lucid explanation of those points given by the honourable Member for Brent North, Mr Barry Gardiner, who is still the Front-Bench spokesman for Labour on the matter of trade—but I do not think I really need to repeat it. The noble Lord, Lord Liddle, gave a very adequate summary of Labour’s position on this. I would merely mention that the noble Baroness, Lady Hayter of Kentish Town, alluded to a customs union which, as described by Labour, would be directly contrary to Article 1 of the treaty of Rome and would effectively confer upon the United Kingdom, were the EU ever to accept it, a veto over the EU entering into free trade agreements with third-party countries. It is admirable in its breadth but hopeless in its intent.

Of course, the Liberal Democrats did not go into the general election with a mandate to respect the outcome of the referendum and their position, as I understand it, is that they are determined to keep the United Kingdom in the European Union by any legitimate means. I see them acknowledge that and I understand it.

[Baroness Ludford]

Legitimate and democratic means.

[Lord Keen of Elie]

Legitimate means and democratic means—let us put it that way. They went to the country in the general election as well and returned with 12 seats in the House of Commons; the Scottish Conservatives returned with 13 seats in Scotland, a part of the United Kingdom that voted to remain. But then perhaps people had intelligently understood that the outcome of the referendum should be respected and that they should support those who were prepared to respect it.

We see reference to a second referendum. That would be seen by many as a constitutional outrage. The United Kingdom voted, by a majority of about 1 million people, to leave the EU. The noble Lord, Lord Grocott, touched upon this point: people such as myself from north of Watford understand the meaning of “leave”. It is not a factual question; it is more philosophical. Their reasons for voting leave cover a spectrum, from the sublime to the ridiculous and from the laudable to the laughable. But it was this Parliament which decided that that was how the issue should be determined, so look to yourselves.

A democratic decision can be reversed. If you choose a party in a general election, you may decide that you are not entirely impressed by it and, at a second general election, decide on a new party of government.