Northern Ireland (Executive Formation and Exercise of Functions) Bill

Baroness Smith of Basildon Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Baroness Altmann (Con)]

My Lords, I briefly add my support for the amendment moved so passionately by the noble Lord, Lord Hain. From personal experience, I know what it is like to campaign for a pension that one desperately needs. It is soul-destroying. The relief when the pension finally arrives is also life-changing.

The Government already intervene in devolved issues, as the noble Lord, Lord Hain, said, while the functioning Assembly is not operational. The case for recognition and reparations for these severely injured victims seems absolutely clear. I implore my noble friend, who I know is a compassionate man, to urge the department to show the compassion for which so many across the House have expressed the need.

[Baroness Smith of Basildon (Lab)]

My Lords, I support my noble friend Lord Hain and the noble Lords, Lord Cormack and Lord Bruce, in their Amendment 13A. I spent two and a half years as Victims Minister in Northern Ireland. As we heard from other noble Lords, there is great understanding in this House of the suffering that many have endured. Indeed, the Eames-Bradley report—written by two great men—really brought home to many what was required for the needs of victims, though it was unpalatable and difficult for some.

The victims whom my noble friend Lord Hain spoke about are ageing—they are getting older. Their conditions are getting worse and their circumstances more difficult. One of the things that struck me as both Victims Minister and Health Minister was how, in so many cases, the help that the health service was able to provide was inadequate to meet the needs of those who required support, particularly in cases of mental health. When you spoke to the group of people we are talking about—I do not know whether other noble Lords felt the same—and heard their stories and about the impact of what had happened on their lives, you would be very conscious that you could turn around and take the story with you, but they were living with what they told you and the consequences would never leave them.

We understand the limitations of the Bill and what can be done within it. We understand the problems caused by there being no Executive or Assembly, but this is an occasion when, I hope, the Government could take some action to right a wrong and address an injustice. They could take a step in the right direction to see what support can be given. I congratulate noble Lords on bringing this forward, and I hope that the Minister—who I know is giving considerable thought to this—can give a positive response this evening.

[Lord Duncan of Springbank]

I am struck, as I gaze around the Chamber, by how many people are wearing poppies. And I am struck again by the poetry:

“Age shall not weary them, nor the years condemn”.


But of course we are talking about people who will be wearied by the passage of years and who will be condemned to live through that period—victims of a great iniquity done to them. I have spoken of the situation a number of times now with the noble Lord, Lord Hain. I will preface my remarks by saying that it is our hope that we will secure an Executive who can take this matter forward. Were I to stop with that answer, it would be inadequate, so I will not stop there but carry on.

The important issue here is that we have commissioned from the Victims Commissioner a thorough report into all aspects of this serious issue. We have asked her to expand her remit to look at not just physical but mental anguish and I am able to say today that the Secretary of State will write to the Victims Commissioner, asking her to include a date from which payments shall be made. This is not a future point but rather some point where we can be very clear going forward.

As I said, it is our hope that an Executive will take this matter forward. However, if, despite our best efforts, that Executive have not been restored by the time updated advice on a pension issue has been provided by the Victims Commissioner, the Northern Ireland Office will consider how the matter can be progressed. That is not to put it into the long grass or put it away, but to recognise that it must be progressed.

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Moved by

[Baroness Smith of Basildon]

9: Clause 3, page 3, line 7, at end insert—
“( ) The guidance shall provide for senior officials of Northern Ireland Departments to report to the Secretary of State at the end of every six month period, beginning with the day on which this section comes into force, on which recommendations of the Report of the Inquiry into Hyponatremia-related Deaths—(a) have been implemented,(b) are being considered and the process by which they are being considered, or(c) have been rejected and why they have been rejected.”

[Baroness Smith of Basildon]

My Lords, I rise to move Amendment 9 on the hyponatremia inquiry, which may not be something that is well known to many noble Lords, but I have to tell the House that I have special interest in this issue. As a direct rule Minister in Northern Ireland and Minster for Health, I announced the setting up of this independent public inquiry on 18 November 2004. It was to be chaired by a highly regarded QC, Mr John O’Hara, now Mr Justice O’Hara.

For background information, hyponatremia is a condition where the concentration of sodium in the blood falls below safe levels. It can occur for different reasons: it may be that somebody has been vomiting or has diarrhoea and needs to be rehydrated. In hospital, where patients’ fluids are monitored, it is a preventable condition.

The inquiry was started because five children were identified who had died in hospital. They were Adam Strain, aged four; Claire Roberts, aged nine; Raychel Ferguson, also aged nine; Lucy Crawford, aged just 17 months; and 15 year-old Conor Mitchell. The deaths of Adam and Claire, the events following Lucy’s death, Raychel’s case and the issues presented by Conor’s treatment were all investigated by this inquiry.

Surely, there can be no greater or more painful loss for a family than that of a child. When this happens in hospital and that child was receiving treatment, a fundamental role for any inquiry has to be to understand precisely what happened both before and after, and to give recommendations for future actions to prevent something like that ever happening again. The inquiry, announced in 2004, was originally delayed because of police investigations. For other reasons, the report of inquiry was not published until January this year, nearly 14 years after I initiated it. That report has 96 recommendations. I have just re-read large parts of the report before the debate today, and in places it makes grim and very sad reading.

I want to refer to two key aspects that Mr Justice O’Hara identified, and they will form the background to my explanation for bringing this amendment before us tonight. The first is the number of errors made in treating the children, which, rightly, have been very carefully and painstakingly investigated and recorded. The second is the unacceptable difficulties in getting witnesses to be open and frank. In places, Mr Justice O’Hara refers to what he calls “unsatisfactory evidence”, with an attitude of deceit and defensiveness. He describes this as “frustrating and depressing”. That led to his first recommendation being a “statutory duty of candour”—in other words, a legal duty to tell the truth—and there are 95 other recommendations.

My amendment is about the implementation of those recommendations and to ask what has happened since that report was produced in the absence of a Northern Ireland Assembly, an Executive or Ministers to consider them and take action. Paragraph 1.70 of Mr Justice O’Hara’s report said:

“It is for the Department of Health to take them forward. Many will doubtless require significant detailed consideration to enable implementation. I expect the Department to indicate not only which of my recommendations it accepts but also to make clear how and when implementation is to be achieved. Further and subsequent reports should then be made detailing progress towards implementation with a final published confirmation of same”.


So Mr Justice O’Hara and his team took on this inquiry and made their report with every expectation that it would be properly considered and acted on, and the purpose of my amendment is to ensure progress.

In the intervening years since 2004, I would have expected that, as problems were identified, some of those recommendations would already have been evident and acted on, with new systems and practices being put in place, but we just do not know. Also, some recommendations—particularly the statutory duty of candour—require political decisions. Others might need political direction in terms of funding and others will be purely clinical.

Given the difficulties faced in the 14 years before the inquiry was able to complete and publish its investigations, what is needed now is a totally transparent and open process. However, the difficulty is that, because there is no Assembly and no Ministers or Executive, we do not know what progress has been made and there is no political direction. It seems wrong that a lack of political responsibility in Northern Ireland, with no Ministers and no Assembly, should prevent action, and prevent those concerned—particularly the families of the children I have mentioned—knowing what action is being taken. Even the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, has described the situation as “shocking” and “appalling”. Ideally, local Ministers—I think there is also a role for a Stormont health committee here—should deal with this as a matter of urgency.

Therefore, my amendment provides for the Secretary of State to bring some humanity to this issue and to seek six-monthly reports with updates on progress—the amendment details the kinds of updates that we are seeking—so that the people of Northern Ireland can be confident that there is some political oversight and openness about what happens now. Whatever the political situation in Northern Ireland, this is too important a report to allow it just to fade away.

I am grateful to the noble Lord, Lord Bruce, for his amendment, and I know that he supports my amendment as well. I am also grateful to the Minister for the discussions that he and I have had on this issue. I know that he recognises the importance of and urgency behind it. I have had a letter from him this evening which indicates to me that, in so far as the limitations of this legislation allow, he is looking to see what can be done, and I shall be grateful if he can put that on the record tonight.

This matter is key. The families of these children are desperate to know what is happening and how progress will be made. In asking the Minister to respond and outline the commitments that he has been able to make to me in the letter so that they are on the record, perhaps I may press him a little further. In his letter to me, he says that he will seek that information at regular six-monthly intervals from the Department of Health. What is his expectation of the department’s responding? We need some expectation that it is going to respond and is prepared to do so. I note also that the Permanent Secretary of the Department of Health, Richard Pengelly, is prepared to meet with the noble Lord, Lord Bruce, and myself to discuss the issue. I hope the Minister can endorse the comments in his letter and explain what this House would expect. It is difficult—we understand that the Government do not want to have direct rule creep towards it, as it were—but unless there is some political responsibility, who else do the families have to turn to in order to see that justice is done and this report’s recommendations are seriously considered and implemented? I beg to move.

[Lord Bruce of Bennachie]

My Lords, I am very grateful to the noble Baroness, Lady Smith, who brings her first-hand experience to this amendment, which I have also tabled, and has given us in detail the history of this very sad set of circumstances involving children who appear to have died in circumstances of negligence within the health service. The fact that it took so many years is in itself a problem, but I do not need to reiterate what has been said.

I noted that on Friday the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, said that it was “shocking” and “appalling” that the inquiry recommendations could be fully implemented because of the lack of an Executive in Northern Ireland. In particular, legislation is needed to introduce a legally enforceable duty of candour—a key recommendation of the inquiry. In light of our debates, I wonder how many times politicians in this House or in Northern Ireland are going to be saying to the public in Northern Ireland, their constituents and voters,“We can’t do anything because we don’t have an Executive”, and at what point the people themselves will say, “When on earth are you going to do something for us?”. They are living in a democratic and political vacuum, with no time limit. I take the point about direct rule, but it is heartless to say to people that we had an inquiry, we got recommendations, but because of political incompetence—the mildest way you could describe it—there is nothing we can do. I hope that the Minister can give some reassurance that this vacuum can be at least partially filled.

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To take the matter further with the noble Baroness, Lady Smith, the Department of Health Northern Ireland has said that it will respond. The letter, which I believe she has received, commits that we will write to the Department of Health Northern Ireland, asking for an update on the recommendations in the manner proposed by the noble Baroness’s amendment. We shall share those updates publicly. On the basis that work is ongoing and with the reassurances we have given that regular updates will be provided, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Smith of Basildon]

I am grateful to the noble Viscount. I was rather surprised that he answered; I had expected the noble Lord, Lord Duncan, to respond as the letter is from him. Could I have one clarification? In the letter to me from the noble Lord, Lord Duncan, he said that he would be writing personally. The noble Viscount, Lord Younger of Leckie, said that the Government will write. This has to be done at ministerial, not official, level. Will he confirm that to me?

[Viscount Younger of Leckie]

I can give a complete reassurance to the noble Baroness on that basis. It might be a good idea if I can commit that my noble friend Lord Duncan will write to her. I will also put my name on that letter.

[Baroness Smith of Basildon]

No, the noble Lord, Lord Duncan, has already written to me and I am happy with the letter he sent. I want to confirm that the letter to the Department of Health in which the noble Lord, Lord Duncan, will seek at six-monthly intervals to get an update, which the Minister has said the Department of Health will respond to, will be a letter from a Minister, not an official.

[Lord Duncan of Springbank]

I was having a bit of a breather, but I am very happy to confirm that. It is important that we do this—absolutely essential.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. I understand and appreciate the time that he has invested in this. He has been very generous with his time and his views. On that basis, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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[Baroness Barker]

The noble Baroness, Lady O’Loan, and the noble Lord, Lord Alton, have repeatedly said that there is no right to abortion, but your Lordships will know that time and again international courts and the UN have agreed that access to abortion is a right under Article 8. There are many rights that are not set out specifically in the convention, but the right to privacy and the right to family life are inextricably linked to control over one’s body and reproductive rights.

Therefore, I ask your Lordships to vote against the amendment of the noble and learned Lord, Lord Mackay, if it is put a vote, which I hope it is not. It inserts a reference to Section 6 of the Human Rights Act, and that is designed to constrain what the Secretary of State for Northern Ireland could include in guidance. That would be most likely used to declare that the current criminalisation of women who end their own pregnancies in Northern Ireland is acceptable under human rights law, because it is as a result of one or more of the provisions of primary legislation and the authority could not have acted differently. Specifically mentioning Section 6 of the Human Rights Act could require that guidance be issued that knowingly contravenes Article 8 of the European Convention on Human Rights—the right to privacy and family life. There have been many mentions of the court case in June, and we know that there will be a case before the Supreme Court later this year. It is important, therefore, that the guidance issued in Northern Ireland is sufficiently up to date to ensure that the men and women of Northern Ireland do not lose the access to human rights that the rest of us have.

This is a wrecking amendment, it would overturn the decision made by a majority in another place, and I hope therefore that all noble Lords will resist the amendment of the noble and learned Lord this evening.

[Baroness Smith of Basildon]

My Lords, I had not expected to be on so soon. Many of us in the Labour Party have some form on debating Clause 4. I am nothing if not consistent: I want to keep Clause 4. It is worth reminding ourselves what Clause 4, which was voted into the Bill by a cross-party majority of almost 100 in the House of Commons, says. It came on the back of a decision by the Supreme Court in June that Northern Ireland abortion law was “untenable and intrinsically disproportionate” in relation to rape and incest, which are criminal matters, and fatal foetal abnormality. The House of Commons looked at this issue within the confines and context of the Bill and also at gay marriage, which is possible in the rest of the UK as a result of a law passed in your Lordships’ House.

Noble Lords have rightly said that Clause 4 does not change the law but states that, in the absence of a Northern Ireland Executive to scrutinise the impact of laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations, the Secretary of State for Northern Ireland is required to provide clear guidance to Northern Ireland civil servants on the operation of these laws, and to update the House each quarter on how she plans to address the laws’ impact on the UK’s human rights obligations. This is exactly what has been agreed by the House of Commons by a large majority.

I understand why the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan, have brought forward this amendment. It recognises that the existing law may contravene the European Convention on Human Rights but then says that the Secretary of State can do nothing about it. That does not seem to be a position which your Lordships’ House would want to be in. Like my noble friend Lord Cashman, I understand the sentiments and principles behind the amendment in the name of my noble friend Lord Adonis. We think alike on these issues. I struggle with the concept of issuing guidance to civil servants not to enforce legislation. Guidance is not the way to do it, and that is why the House of Common has taken the approach that it has.

All noble Lords understand that these issues evoke emotional responses. They are difficult, personal issues, which is why this is a matter of conscience and there is a free vote in both Houses of Parliament. The House of Commons sought a way forward which is both proportionate and within the terms of this legislation. As I said once before within my own party: I urge your Lordships’ House to protect Clause 4.

[Lord Duncan of Springbank]

My Lords, this has been a thought-provoking, considered contribution to the debate this evening. At the outset, I draw the attention of the Committee back to the functioning and purpose of the Bill itself. The Bill is designed to ensure an opportunity to re-establish a functioning Executive. That is the ambition behind the Bill and its subsequent elements. A functioning Executive would go a long way to addressing the issues which have been raised this evening. We can be fairly clear that this matter most correctly rests with an Assembly in Northern Ireland.

The noble and learned Lord, Lord Mackay, has put forward an amendment and has graciously said that he will not put it to a vote. However, his contribution has allowed an open opportunity to explore each of the elements within the wider debate. The noble and learned Lord has been clear about the constitutionality of the amendments in the name of the noble Lord, Lord Adonis. However, the purpose behind them is understood. He too was seeking to send a message with his amendments this evening. He has done that; we have heard the message.

I also listened very carefully to the impassioned remarks of the noble Lord, Lord Shinkwin; everyone here will have been moved by them and recognised the passion with which they were given. The Government have no intention of undermining or diminishing the position of persons with disabilities. That was never an attempt or an endeavour. This Bill and any guidance it puts forward would not influence Northern Ireland departments to act in any way which is not compliant with Section 75 of the Northern Ireland Act 1998, which includes provisions to ensure equality between people with disabilities and people without disabilities. I recognise, however, exactly the points the noble Lord made, and they are perhaps for us all to reflect upon this evening. This is, as a number of noble Lords have made plain, a matter of conscience, and I have no doubt that many this evening will be considering these elements as they listen to the ongoing remarks.

I am also taken by the ideas put forth by the noble Lord, Lord Alderdice. Two things become clear to me. Public opinion is a curious thing. Sometimes we think that we know what it is, and sometimes we are wrong, but I think he is absolutely correct that there has been an evolution in public opinion within Northern Ireland. Exactly what it is and how it can be determined can be captured in snapshots of opinion polls, which are like the blink of an eye. Sometimes they change, and it is very hard to pin them down. I cannot make any commitment regarding his novel idea of referendums, but I would like to discuss that further. If he is amenable, I would like to sit down in the future to explore that very thing. However, it is of course not for this particular Bill to move that matter forward.

Northern Ireland: Executive and Assembly

Baroness Smith of Basildon Excerpts

Monday 25th June 2018 Lords Chamber

[Lord Duncan of Springbank]

Yes, that is quite extraordinary. It is the beginning, not the end, of a journey. I shall be joining Arlene Foster in meeting them in Belfast on Thursday evening.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister is always an emollient voice on these issues, but we are in a serious situation. The courts have already made a judgment that civil servants exceeded their authority in decisions made. We have had the hyponatraemia case, which was a public inquiry that I set up in 2004. It did not report until 2018, and we do not know how many, if any, of the inquiry’s 96 recommendations—following the deaths of five children—will ever be implemented, because it has not been considered by elected representatives. We have the issue of abortion for victims of sex crimes and in cases of fatal foetal abnormality, and we have Brexit talks where there is no one from the Northern Ireland Executive representing Northern Ireland, although we have someone from the Scottish Executive and someone from Wales. How much longer can this be allowed to go on? More importantly, how many other cases and examples are there where Northern Ireland is suffering and not functioning because of a lack of elected representatives taking the positions they were elected to perform?

[Lord Duncan of Springbank]

I can be very frank and say that Northern Ireland will be suffering in the absence of an Executive; of that there can be no doubt. It is not for me to try to work out what is happening in the Province of Northern Ireland; it is for the elected representatives, who listen to the voices of Northern Ireland, to move forward. The issues raised by the noble Baroness are absolutely correct: there needs to be a voice for the political communities of Northern Ireland inside Brexit. The Government do all we can to reach out to all those elected parties, but there is no functioning Executive. Until we have that, we cannot make the progress required for the people of Northern Ireland. The noble Baroness asks how long we can go on. The reality is: not much longer.

Northern Ireland: Supreme Court Ruling

Baroness Smith of Basildon Excerpts

Thursday 7th June 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for repeating the response today. The case today was in effect dismissed on a technicality because the Northern Ireland Human Rights Commission is an organisation, not an affected individual, but we are all too familiar with the individual cases and the individual women who have faced restriction under the current law, in extremely distressing circumstances in some of the cases that we have heard about, which has been harrowing for them and their families.

As the Minister said, a majority of judges found that the laws covering abortion in Northern Ireland are incompatible with Article 8 of the convention. The noble and learned Lord, Lord Mance, stated:

“Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible”.


There is some urgency now to ensure that the law is fit for purpose, as well as to debate the wider issues around decriminalisation and the accessibility of services across the UK. The ideal scenario, and I know the Minister agrees with this, would be for a devolved Assembly to take hold of this moment and debate changes to the law at Stormont. However, there is no functioning devolved Government in Northern Ireland. In the absence of a functioning Executive and Assembly, will the Government set out a clear timetable saying that if local parties are not prepared to come back to an Assembly then Westminster will have an obligation to act, on the moral and legal basis that UK law must be compatible with our convention obligations?

The wider issue here is that this case vividly highlights the importance of having a functioning devolved Assembly and Executive in Northern Ireland. Could the Minister please update the House on the Government’s most recent actions to bring this about? I do not at all underestimate his commitment, but we need to know what actions are being taken rather than hearing warm words such as “the Government want” and “it is a priority”.

[Lord Duncan of Springbank]

I thank the noble Baroness. I wish I could give more than warm words at this time. We have to consider the judgment very carefully; it is 140 pages long and came out only this morning. However, the early analysis suggests that the technicality that the noble Baroness and I have both touched upon will in due course be addressed by another case, and that technicality will be eliminated.

The issue is therefore how this matter shall be addressed in Northern Ireland. Clearly, as I have said on a number of occasions on a number of matters, we would prefer a devolved Administration—a devolved Executive—to take these issues forward. None the less, the last time that the Assembly in Northern Ireland debated this issue on a cross-party basis—on each occasion regarding each of the elements that were part of the judgment today: the fatal foetal abnormalities, rape and incest—the Assembly itself did not endorse progress on these matters. It is important that the issue is addressed with some urgency but also with some care, because there are a number of wide implications that we must take on board. That is why at this stage we will consider the judgment very carefully to ensure that we understand exactly what it is saying, so that we can appreciate how to take the next steps.

Northern Ireland: Devolved Institutions

Baroness Smith of Basildon Excerpts

Wednesday 23rd May 2018 Lords Chamber

[Lord Duncan of Springbank]

My right honourable friend the Prime Minister has engaged directly with the Taoiseach and others, but we need to think afresh and, as we progress in the next few months, we will need to visit a number of past experiences and try our best to navigate a much more challenging way forward. Nothing is off the table.

[Baroness Smith of Basildon (Lab)]

My Lords, the key question was that asked by my noble friend Lady Blood and alluded to by the noble Lord, Lord Empey: this court case and its decision basically says that the Civil Service was wrong to take a decision of such significance that it should have been taken to Ministers. With no Ministers in place now for more than 16 months, that calls into question any decisions on these issues taken by civil servants in Northern Ireland. I respect the Minister enormously; he says it is a top priority—the single most important issue for the Government— but he has to listen to my noble friend Lord Hain. The Government must get round the table and, if necessary, lock the doors until they come out with an agreement.

[Lord Duncan of Springbank]

I am sure there will be a lot of agreement to lock some people in certain rooms; there is no question of that. But the reality we must face is a simple one right now. That judgment is significant. In the past, the Government have sought to plot a trajectory from the policies and decisions taken by the previous Executive and not to stray beyond them. That cannot go on for much longer—the point of movement is too great—so there is now a necessity to find a way of restoring good governance to Northern Ireland. A number of options are available. The preferred option, the sensible option, the right option, is to ensure that there is an Executive that works in the interests of Northern Ireland, rather than people like me trying to work it out backwards.

Sexual Offences Legislation

Baroness Smith of Basildon Excerpts

Tuesday 22nd May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, that would be a matter for the Home Office and not for the Ministry of Justice to consider. However, I am sure that Ministers in that department are listening.

[Baroness Smith of Basildon (Lab)]

My Lords, can I take the Minister back to the question asked by my noble friend Lady Corston? His answer seemed rather complacent. If on Google women who have been victims of rape can be identified and help is being offered to do that, surely the Minister would want the Government to take some action and not just accept it.

[Lord Keen of Elie]

With respect to the noble Baroness, there was no complacency in my previous answer. Clearly, we will look at the facts and circumstances of any complaint and then determine what action it is appropriate to take. However, it would not be appropriate to anticipate prosecution or other action without a proper investigation of the facts. Indeed, that underlies many of the complaints made here today.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Bassam of Brighton]

My Lords, I have a few words to add to what has been a hugely interesting and entertaining debate, led off by the eloquent and entertaining noble Lord, Lord Patten of Barnes, who speaks with great knowledge and experience on this, as do many others. My amendment was stimulated by anger at those former Ministers who decided that it was worth the price of Brexit to suggest that we should rethink the Belfast agreement, which has brought so much peace, tranquillity and good order to governance in Ireland, and the north of Ireland in particular.

Amendment 316 seeks simply to ensure that, when this Bill passes, there should be some further thought because I do not think that much thought has yet been given. This is one of those debates that happen simply because of the unintended consequences of Brexit, and not enough was thought of by the Brexiteers in the run-up to the leave vote on 23 June 2016. That is why that amendment is there, although the one proposed by the noble Lord, Lord Patten, is far superior, because it takes us to the principles that are fundamental and lie behind it.

I can see that both Front Benches want to get on, so I shall speak only briefly to my amendment, but it is right that we have these things at the forefront of our minds. Perhaps when we come back at Report, we will have something there enabling us to focus on this and give it further thought, as well as enabling the Minister to say something better than what has been said before—that instead of the Bill being merely about transposing one set of legislative rules into a new set, we recognise what has happened before and the impact of the Belfast agreement on the future governance of our country post-Brexit.

[Baroness Smith of Basildon (Lab)]

My Lords, as my noble friend Lord Bassam said, this has been an immensely interesting debate. I know that other noble Lords have referred to this as the second debate that we have had on Northern Ireland, but all the amendments in this group reflect the concerns that we have had, the degree of concern around the issue and the fact that we have not really had the answers to satisfy those concerns yet. The impact of Brexit on the Good Friday or Belfast agreement is profound. I understand that the Minister has a weariness about saying the same things as last time, but I hope that he will understand, from comments that I shall make now and that other noble Lords have made, why there is a need to return to these issues.

My noble friend Lord Bassam sums up in his amendment—which is entirely reasonable, and I hope that the Minister can accept it—that this is about the Government assessing the impact and publishing that. I go back to the speech made by the noble Lord, Lord Patten of Barnes, and his amendment, to which I have added my name. He referred to the radio programme “Just a Minute”, and I think that that is quite apt: this issue deserves “repetition”, and the Government should show “hesitation” and reflect, and perhaps come back with some “deviation”, moving from their current position and giving us some answers as to how the issue can be addressed.

There has been some journey from the Government to clarify the status of the December joint report on the progress of phase 1. Where the Government stand on regulatory alignment has been almost like a political hokey-cokey, and the current position, which is a backstop for what could happen, is probably fair. But the impact of a hard border in Northern Ireland would be profound and deep and have implications for the peace process. It is not just about the physical border—it is also about the psychological impact that it would have, and I think all noble Lords who have spoken today have understood that. The noble Lord, Lord Patten, referred to the security implications, as I did last week, of what would physically happen if there were a hard border and how those border points would be guarded.

Look at the logic of the issue of trade and the hard border. The Government accept that there should be regulatory alignment between the Republic of Ireland and Northern Ireland. However, if you move on from that, the Republic of Ireland obviously has regulatory alignment with the EU, and Northern Ireland has regulatory alignment with the rest of Great Britain, so, surely, that means that there has to be regulatory alignment throughout the whole of that area, which to my mind sounds something like a customs union. I really do not understand why the Government have set their face against this and made it one of their red lines.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I confess that when I first came to your Lordships’ House I never imagined that I would be speaking at 12:15 am on the exciting subject of statutory instruments. That is partly because this House has always taken a greater interest in statutory instruments than the other place.

Looking at the amendments before us this evening, it seems to me that what we are all trying to do is grasp the problem mentioned by my noble friend Lord Adonis. He hit the nail on the head when he said that it is the volume and scale of the statutory instruments that will come before Parliament and how we can deal with them, understanding and recognising the Government’s commitment that EU law should be transposed into UK law while at the same time ensuring the accuracy of those statutory instruments—so many issues, so little time. It is finding the balance that meets the objectives of the legislation without creating serious problems that the lack of scrutiny will bring. The accuracy of these SIs and orders is vitally important.

We started this debate last week when the noble Baroness, Lady Goldie, responded about publishing the draft instruments. I have brought forward two issues time and again. First, we need the resources to do this job properly and, secondly, we need wider consultation on draft amendments prior to them being laid before your Lordships’ House or the other place. When we had the debate last week, the noble Baroness said that it was not possible, and I am still struggling to understand. I hope at some point that things will become clear because her point was that to publish all SIs in a draft form,

“could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues”,—[Official Report, 12/3/18; col. 1467.]

in negotiations. I struggle to understand how discussing a statutory instrument can possibly impact on negotiations, given the Government’s commitment to bringing all issues into UK law. That aside, the crucial issue is the volume.

I hope that the Leader of the House will say something today about how the Procedure Committee has already looked at this. We are taking things slightly out of sync but it is helpful to the House. I am grateful to her for discussions that we have had in the Procedure Committee and through the usual channels about how we can best give effect to what is currently in the Bill. I hope that she will say something today about how that will be addressed when appropriate to do so. I am grateful to her for suggesting that. We are trying to look at the fine-tuning of that process and make sure that we get it right.

On the specific amendments, I thought that the noble Lord, Lord Lisvane, did a fine job of trying to bring order and I am grateful to him for that. It would be helpful if it were not the subjective decisions of Ministers alone. The involvement of Parliament would be greatly welcomed.

I am surprised that some noble Lords on the Liberal Democrat Benches invoked the Strathclyde report. If noble Lords recall, I take the view, as I think does the majority of this House, that when we declined to accept the tax credits amendment and suggested transitional measures to the Government, it was not a rejection of that SI but an opportunity for the Government to reconsider and think again, which the Government gratefully took and accepted. The Strathclyde report was then a response to that, but it also tried to clip the wings of your Lordships’ House in how we deal with SIs, so I am not sure that I would rely on the Strathclyde report as a good way forward.

I understand what noble Lords are seeking in Amendment 237A, and the noble Lord, Lord Lisvane, has tried to bring some order to that because of course we cannot send something back to the other place if it was not sent to us from the House of Commons. I would be interested in the Government’s response to that.

[Lord Sharkey]

Perhaps I can help on the point about whether the Commons can reconsider something that it has not actually considered. I hate to have to refer to the Strathclyde report again, given what has been said, but there is a suggestion in the report of exactly how that is taken account of. The two committees could easily agree a sequence for consideration so that it was already possible for the Commons to reconsider something. We simply have to introduce a slight delay to make that happen.

[Baroness Smith of Basildon]

I understand the point the noble Lord makes, but if we remember the reasons it was brought forward, this is not the process we have at present.

The other point about stating the reasons, as set out in Amendment 239B, for why an SI is urgent is very helpful in this regard. All of these amendments are trying to bring some order to the process which at the moment seems to be complicated and difficult and raises concerns about accuracy.

I hope that the noble Baroness can respond positively to these amendments. I will not go into further detail because that has been provided by the noble Lords who have spoken to these amendments, but this is a serious issue and I suspect that if we do not receive an appropriate response from the Minister, we will return to it as the Bill proceeds.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, before responding to these amendments in turn, I should like to take this opportunity to expand on the remarks I made at Second Reading. As I said then, I wanted to find a way to build any new sifting procedure into the existing scrutiny structures which this House has developed so successfully over the years. On 5 March, as the noble Baroness has said, the Procedure Committee agreed to my proposal to incorporate the same powers as those of the new Commons sifting committee into the terms of reference of the Secondary Legislation Scrutiny Committee as well as conferring the power to appoint sub-committees. This will allow the sub-committees to recommend within 10 sitting days that the House’s consideration of specific negative instruments related to this Bill should follow the affirmative procedure.

As the House will expect, the SLSC’s existing role in scrutinising the merits of all instruments will continue as before, with the sub-committees fulfilling this function alongside their new sifting role in relation to the SIs flowing from this Bill. The main committee will have responsibility for determining the allocation of policy areas between the two sub-committees as well as maintaining oversight of the scrutiny process in general terms. If it wishes to do so, this will allow it to meet as a whole to conduct its own inquiries into the overall management of secondary legislation, as it has done in the past. The 10-day period for allowing the sifting committee to make a recommendation was originally suggested by the Delegated Powers and Regulatory Reform Committee of this House and was endorsed by the Procedure Committee in the Commons. The Government are content to agree to this timeframe, and that is why the sub-committee will have the power to report directly to the House, to award it greater agility in conducting its sifting role without unrealistic constraints on the time to report.

The agreement reached regarding the SLSC’s new role is, I believe, an example of the House coming together on a constructive basis to strengthen our important scrutiny role, and I am grateful to other members of the Procedure Committee, including the noble Baroness, Lady Smith, the noble Lord, Lord Newby, and the noble and learned Lord, Lord Hope of Craighead, for their support in reaching this decision. I am also grateful to the chairman of the SLSC, my noble friend Lord Trefgarne, his clerk and advisers for their constructive engagement in the development of this proposal. I am pleased to confirm that the SLSC will receive additional resources both in terms of expert advice and additional members, including the ability to form two sub-committees, in order to fulfil its new sifting role. I know that noble Lords on all sides will want to ensure that the new arrangements are a success. The House will be invited to agree the proposed arrangement when the Procedure Committee presents its report. That is expected to be when the passage of this Bill is nearing completion, as of course the report may have to reflect any relevant changes to the Bill that are agreed by both Houses.

In the meantime, and as the Bill progresses, I am clear that both Houses must be treated equally regarding the proposed sifting arrangements under the Bill. In this respect, the Bill, as introduced to this House, only makes reference to the House of Commons in the relevant paragraphs of Schedule 7. The Government will therefore introduce amendments to incorporate equivalent references to the House of Lords where appropriate.

I hope I have explained to noble Lords the new proposed arrangement, so I will now turn to Amendment 237, tabled by the noble Lords, Lord Tyler and Lord Lisvane. Noble Lords will know that the sifting committees, as currently provided for in the Bill, cover only the main powers in the Bill, rather than any consequential and transitional provisions made under Clause 17 where the negative procedure is stipulated. Making such consequential provisions through SIs is already a standard approach in legislation—even in significant constitutional legislation, such as the Constitutional Reform and Governance Act 2010, the Scotland and Northern Ireland Acts and the Government of Wales Acts. We have already published a draft example of consequential provision that we will need to make under the Bill—the European Communities (Designation Orders) (Revocation) (EU Exit) Regulations 2018—but we intend to publish further such examples before Report. I hope these will reassure noble Lords that the negative procedure is being used appropriately. In relation to the comments of the noble Baroness about draft SIs, we intend to publish them where possible and appropriate. As I have mentioned—I will mention a few more—we have already published some illustrative drafts and will continue to do so to support the debate in this House.

The proposed powers of the SLSC, as the Bill stands, will not allow it to make the sort of binding decision proposed by noble Lords. We believe that this is consistent with how this House’s committees conduct their scrutiny work in other areas. Ultimately, it is up to both Houses to decide whether a Government are using appropriately the delegated powers Parliament has given them when they come to consider an SI. It is right for this House to consider these instruments in the light of the expert advice of its committees, but we do not believe that it would be right for those committees to make binding decisions about the use of delegated powers independent of the whole House. The amendment, as proposed, would also see the Government bound by a decision of the sifting committee of one House, even when the other disagrees, and only the recommending House would be able to reject the recommendation. Currently, no mechanism for the resolution of such disagreement is provided in the amendment.

The noble Lord, Lord Lisvane, mentioned the Legislative and Regulatory Reform Act, the Public Bodies Act and the Localism Act. All of those Acts combine a sifting mechanism with the form of the super-affirmative procedure. We do not believe that the super-affirmative procedures are suitable for the instruments to come, particularly given that they can take up to six months, but as I hope I have set out, we have taken steps to create a sifting process in the Bill.

I understand noble Lords’ concerns that, as Ministers are not bound to accept the committee’s recommendations, they may choose to exercise discretion; however, if both sifting committees were to reach the same—well-considered, no doubt—and persuasive recommendation, I assure your Lordships that the Government’s expectation is that such recommendations are likely to be accepted. Where the two committees disagree, the situation would of course need to be carefully considered on its merits. On the occasions—hopefully, very rare—when the Government did not agree to a recommendation to use the affirmative procedure, we would expect to justify fully our reasons to the committee concerned.

Furthermore, when the House chooses to delegate a scrutiny role to its committees—as is the case in other important policy areas—it is important for it to have confidence in the committee’s expertise and judgment to make a persuasive recommendation for the House to consider. I fear that making the committee’s recommendation binding, then building in an explicit provision to allow the House to reject such a decision, as the amendment seeks to do, could undermine the well-established confidence that the House has in its committee structure.

The amendment would also—unnecessarily, in my view—increase the sifting period from 10 to 15 days. As noble Lords have already said, we expect time to be in short supply as we prepare to exit the EU. As I have already stated, the changes to the SLSC’s powers, agreed to by the Procedure Committee, will seek to maximise the sub-committee’s ability to conduct its important scrutiny work within that 10-day period.

Northern Ireland: Devolved Government

Baroness Smith of Basildon Excerpts

Thursday 22nd February 2018 Lords Chamber

[Lord Duncan of Springbank]

In response to my noble friend I will happily say that the Belfast agreement is an imperative, essential element of the Government’s policy, and I have no desire for that celebration to fall without an Executive.

[Baroness Smith of Basildon (Lab)]

My Lords—

[Lord Browne of Belmont (DUP)]

My Lords—

[Baroness Smith of Basildon]

I am happy to give way to hear from the DUP.

[Lord Browne of Belmont]

My Lords, it is clear that in the coming weeks, regrettably, Northern Ireland will not have a functioning Assembly or Executive at a time when decisions will have to be made on the details of managed divergence between trade regulations in the UK and the EU. Can the Minister assure me that, given the absence of local political representation, the Government will arrange for discussions as soon as possible with representatives of the business and farming community in Northern Ireland to ascertain their concerns and, if possible, take steps to address them?

Northern Ireland Update

Baroness Smith of Basildon Excerpts

Tuesday 20th February 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for repeating today’s Statement, and I say at the outset that we understand and appreciate all the effort required to seek the agreement needed to re-establish the political institutions. The UK Government, the Irish Government and all the political parties have worked hard to try to rebuild trust and deliver a deal. Although this round of talks has ended in failure, I commend all of them for their efforts. But on listening to the Statement, I have a sense of déjà vu and it is hard to understand where, despite all this effort, progress has been made.

I took the opportunity to reread a Statement made last July by the former Secretary of State for Northern Ireland, James Brokenshire; I am pleased to see that he is back in Parliament today. Both Statements, from July and from today, say that progress has been made. Both say that gaps still exist on key issues, but before we were told that they were few in number. We had more information in the last Statement back in July on where progress had been made. Both Statements say that the Government remain optimistic and that a deal is achievable.

Is the Minister to say anything more about where progress has been made this time? When the Prime Minister visited Belfast she said that there was a deal on the table. That was corroborated by the Irish Government and Sinn Féin, but it was then disputed by the DUP. To provide reassurance that progress has been made in the last 13 months, the details of where there was agreement and where gaps remain should be published. Can the Minister assure your Lordships’ House that he will encourage the Secretary of State to commit to providing that detail for the people of Northern Ireland and for Parliament? Only then can there be a real understanding of why the talks have failed so far. Such transparency may offer greater support for those who really want to see the institutions re-established.

I will give the noble Lord a personal example. At the end of last month, on 31 January, the report of the inquiry into deaths related to hyponatraemia was published, 14 years after I set it up as a direct rule Minister, following the deaths of young children. That report makes difficult reading into why those children died. It also makes a number of significant and very important recommendations for action. Some of those recommendations may have been taken forward already and others can be put in place by the relevant authorities, but others need the involvement of locally elected politicians in both the Assembly and ministerial roles, which Northern Ireland has been without for the last 13 months. I use that example because I have a personal connection to it, but it is not the only issue on which Northern Ireland needs its locally elected representatives to step up to the plate. They have a duty to those who elect them. Surely local people have a right to know what the areas of agreement are and the areas of disagreement that remain. They can then raise these issues with the decision-makers and negotiators.

Disappointingly, in the other place the Secretary of State said that this was a matter not for the Government but for the political parties. I put it to the Government that this is a matter which they should discuss with the political parties and, if they refuse to agree to publication, the reasons should be made public. Transparency is now essential.

Some in Northern Ireland are looking to the Government to make difficult decisions and have even encouraged direct rule. Direct rule is far harder to remove than it is to set up. I was told in 2002 by my noble friend Lord Reid that I was going to be a direct rule Minister for around three months. I was then in post for two and a half years and direct rule lasted for three and a half.

Many of us have been alarmed by those who have used this situation to oppose power-sharing and the Belfast agreement. That is a dangerous and reckless approach. The efforts of those from all political parties, here and in Northern Ireland, over time ended a conflict that claimed 3,500 lives. As a former Victims Minister in Northern Ireland, I met with many more who had had their lives changed for ever through injuries and loss. I trust that when a former Conservative Secretary of State for Northern Ireland makes such comments, he is not in any way at all acting with the agreement or even the acquiescence of the Government. I welcome the comments in the Statement about the Good Friday agreement. Can the Minister confirm from the Dispatch Box that the Government fully support the Good Friday agreement as the only viable long-term option for peaceful governance for Northern Ireland, and that the Government believe that its unique form of power-sharing is indispensable?

We have heard the Secretary of State say that she intends to introduce legislation here at Westminster to directly set a budget for Northern Ireland. The Minister confirmed that. They have our support in doing so, though it is deeply unsatisfactory to have unaccountable civil servants taking decisions about schools and hospitals, and the example I gave of the inquiry. However, we acknowledge that resources must be allocated for services to be delivered. Obviously full-scale direct rule for Northern Ireland would regressive.

Political problems are nothing new to Northern Ireland, but the current impasse that has left the people of Northern Ireland without a Government for almost 400 days is a profound crisis. The Government have a clear duty to resolve it, and to preserve the Good Friday agreement and the principle of power-sharing.

Many in your Lordships’ House, and many here today, have been involved in Northern Ireland and retained an affection and an interest. I am sure that we all want the Government to continue to seek resolution and we will support them on legislation where necessary. However, we will hold them to account to preserve the letter and the spirit of the Good Friday agreement.

[Baroness Suttie (LD)]

My Lords, I, too, thank the Minister for repeating the Statement. On these Benches, we add our voice to those who feel a sense of deep disappointment, and indeed some bewilderment, at this latest failure to reach a workable agreement.

Just over one week ago, when the Taoiseach and the Prime Minister went to Stormont, we were led to believe that a deal was possible. That a positive outcome has once again proved elusive inevitably leads us to ask questions about the structure, participants and transparency of the negotiation process. As Naomi Long, the leader of the Alliance Party in Northern Ireland, has said, there was a degree of inevitability that,

“without a more structured approach, we would not see a successful outcome”.

This latest failure is a missed opportunity and yet again leaves the majority of ordinary people in Northern Ireland feeling deeply frustrated and without a democratically elected voice at this critical time.

Much-needed decisions have to be taken about how to ensure effective public services for the people of Northern Ireland—decisions about long-term provision for education, health and infrastructure development—and how to build the shared society that we all want. As the noble Baroness, Lady Smith, has just said, civil servants have played an excellent and vital role in the past 13 months during this political vacuum—and we should pay tribute to their professionalism—but without an Executive in place there remain inevitable questions about democratic legitimacy.

Three weeks ago, on a visit to Northern Ireland with the EU Select Committee, I was struck by the excellent and imaginative work being carried out by so many people in the business community, as well as in local government and civil society, to strengthen the Northern Irish economy, most particularly at this time with the additional and complex challenges of Brexit. However, their deep frustration that many of their plans were on hold because of the absence of an Executive in Stormont was palpable.

On these Benches, we continue to believe firmly that power-sharing devolution is vital to local democracy and representative decision-making. It must be possible to find creative solutions to the current impasse. In that regard, can the Minister say whether thought is now being given to bringing in an external mediator to chair the negotiations? I appreciate the difficulties in identifying such a person given the sensitivities, personalities and challenges involved, but the events of last week show that such a person is now needed more than ever. In the light of last week’s failure, will Government consider making the talks all-party rather than just two-party as they are at present?

In the new circumstances, I repeat an earlier question that I put to the Minister: in the continued absence of an Executive, will the Government now give serious thought to the creative proposals put forward by the noble Lords, Lord Alderdice and Lord Trimble, among others, for allowing the Assembly to play a role in ensuring that the views of the Northern Irish people can be heard during the next few months, most especially during the Brexit negotiations?

Given what the Minister has said on inquests in the Statement, will the Government release funds for inquests into historical deaths, as was promised by David Cameron when he was Prime Minister?

It is vital that the hard-won gains of recent decades are not discarded without exploring all the options and alternatives. Northern Ireland and its political leaders have in the past overcome seemingly insurmountable problems, but this situation requires a degree of leadership and flexibility and a spirit of compromise that, sadly, seem all too absent at present. Short-term party-political gain must not be allowed to jeopardise two decades of progress.

Queen’s Speech

Baroness Smith of Basildon Excerpts

Wednesday 28th June 2017 Lords Chamber

[Baroness Ludford (LD)]

My Lords, follow that—I agreed with every word said by the noble Lord, Lord Liddle.

[Baroness Smith of Basildon (Lab)]

Thank you.

[Baroness Ludford]

Especially, of course, about the Labour Front Bench—you are truly wonderful.

Getting back to my script, I, like others, welcome the noble Baroness, Lady Anelay, to the ministerial brief for Brexit. We have obviously had a productive experience with her before as Foreign Office Minister. I also thank the noble Lord, Lord Bridges, who was briefly here earlier but unfortunately did not speak. He valiantly tried in his period of office to represent government policy, but found it a pretty impossible task. We always knew when the noble Lord was most uncomfortable with his brief because he got irritable with my Benches, especially somehow with me. I am sure that the noble Baroness will do no such thing.

The Government lost a full year on litigation to resist parliamentary accountability and then on an unnecessary election. Indeed, the Government undermined their own case, when they had a mandate from the referendum last year, by seeking a renewed mandate. Brexit is therefore in total flux and a total mess. There is no plan. Still now, nobody knows what Brexit will look like. Instead of competent, supple and intelligent government, which was needed to cope with the situation where the country was almost evenly split, we have unfortunately had arrogance, brash triumphalism, hubris and pigheadedness with brittleness instead of strength and disarray instead of stability. This was followed by an inevitable clash with reality and led to, for example, the capitulation on the sequencing of negotiations. Instead of a win-win approach, we had a lose-lose one. How can there be a sound conduct of negotiations against this background? As the noble Lord, Lord Kerr, said, you do not start with red lines and insults.

The Minister has promised openness and transparency in the negotiations. We will see what that means in practice, but so far there has been nothing to match the publication of position papers by the European Council and Commission. Just as the Prime Minister’s forlorn call to the country to rally in unity behind extreme Brexit was not followed by the British people, it has not been followed by her own Government. The headline in the Times today was:

“May’s top team splits over Brexit”,


with the Brexit Secretary calling the Chancellor inconsistent. It is indeed the Cabinet of chaos. Those divisions have been fully aired on the Benches behind her this evening, where a full range of opinions have been expressed. I hope that some will vote for the amendment in the name of the noble Lord, Lord Adonis. It is shameful that while the Cabinet airs its disunity, a Back-Bencher, the noble Lord, Lord Cormack, has told us that he has been punished by the loss of a committee post, where he was most valued, because of a vote that he cast.

Can the Minister confirm that the “no deal” threat is now dead? It was repeated in the Conservative manifesto alongside—astonishingly, although without acknowledgement of the irony—a promise to secure a “smooth and orderly” Brexit. That was, as the noble Lord, Lord Jay, said, an admission of no confidence in the Government’s own negotiating powers. Only the reference to a “smooth and orderly” Brexit was repeated today in the noble Baroness’s opening remarks, so is the cliff edge off the scene? Is the most reverend Primate the Archbishop of York’s “gentler slope” now policy? How gentle is it?

I remind the noble Baroness and the House that the Treasury said last year that the country would be £45 billion a year poorer if we fell off a cliff edge into WTO terms. As the Chancellor rightly observed, and as has been repeatedly invoked tonight, no one voted last year to make themselves poorer—although they already are, as my noble friend Lord Campbell of Pittwenweem remarked. How any Government could contemplate such a destructive Brexit, let alone with relish, an astonishing abrogation of responsibility, beggars belief. As the noble Lord, Lord Hunt, said, economic self-mutilation is not a wise policy.

My noble friend Lord Oates was so right in calling for a sensible and pragmatic approach. We need a reset. As the noble Lord, Lord Mandelson, and the noble Baroness, Lady Armstrong of Hill Top, pointed out from the Labour Benches, nothing has been done to prepare the British public for the inevitable choices and compromises: no spelling out of the implications and no being honest with the voters that we and they cannot have our cake and eat it. There is a need for some grown-up government, which acknowledges that frankly.

I have no time for this Aunt Sally about how the EU is trying to punish us. It is not. There is huge regard for this country in Brussels, but of course you cannot enjoy all the benefits of the club if you leave it. The Government’s ideological red lines—refusing to stay in the single market and regulatory agencies because of a fetish about European judges—amount to shooting ourselves in the foot. This folly is at its starkest in putting dogma before our real interests in crime and security co-operation. My noble friend Lord Teverson mentioned Euratom. My understanding is that it is because of some very marginal jurisdiction that the ECJ has over some aspects—something about the free movement of nuclear scientists—that the Government are pulling out of Euratom. While these arrangements are vital to our safe transfer of nuclear material and treatment for cancer patients, I cannot believe the British public would think that is a sensible outcome.

Enough has been said for me not to repeat it about the Government’s proposals on EU citizens being too little and too late. We will come back to that, not least in a debate next week. On the repeal Bill—thank goodness for the dropping of the pretentious “great”—I am grateful that the Delegated Powers and Regulatory Reform Committee, under the chairmanship of the noble Lord, Lord Trefgarne, who spoke earlier, expressed concern in its report at the end of April, which these Benches fully share, about secondary legislation being used to implement significant and controversial policy matters, not just some technical corrections. We will need to scrutinise these powers with great care and exercise our proper constitutional position, as the noble Baroness, Lady Jay, said.

I believe many people voted for Brexit because they were asked to vote for a status quo in voting for remain as though they were content with everything that was happening in their lives. That was not the case—quite the opposite, in fact—and they were given the chance to vote for drastic change that promised the earth. That promise is not going to be realised, and the great tragedy of Brexit is the waste of time, capacity and money when we should be pursuing domestic problems.

The Labour amendment tonight promises the exact same benefits of the single market without membership. This goes beyond the party’s manifesto claim of retaining the benefits. I can only agree with the noble Lord, Lord Triesman, that this is a slidy position. I fear it is open to the same type of parody as “strong and stable”. That is the real cherry-picking—pretending you would have the benefits of the single market without membership of it. These Benches welcome the amendment tabled by the noble Lord, Lord Adonis, and will support it if he wishes to ask us to vote on it. We have a great deal of sympathy with some of the sentiments in the amendment tabled by the noble Lord, Lord Armstrong, but it does not perhaps express quite the next step that we need to take.

The fact is, as my noble friend Lord Campbell said, that remaining should be an option that the British people have in having the final say once they can see what Brexit actually means in practice. These Benches quite understand why the granddaughters of the noble Lord, Lord Cormack, were distraught. Let us negotiate a sensible Brexit but then, as a second step, let us allow the voters to decide whether it is sensible enough.

[Baroness Smith of Basildon]

My Lords, we have had an excellent debate today. As the 64th speaker, I feel grateful to all noble Lords who tried to keep to the advisory time limit.

I welcome the Minister to her new position. We all know from comments she has made before that if she were in charge of Brexit we would not be starting from here. I wonder what sin the noble and learned Lord, Lord Keen of Elie, has committed that he has to wind up today’s debate. We will miss the noble Lord, Lord Bridges, at the Dispatch Box. He tried hard at all times to address the questions put to him—although, at times, given that the Government themselves have no answers, it was clearly difficult for him.

We have debated for more than seven hours, and it is confirmation of the complexity of the hugely important issues that face us that we have really only touched the surface of them. If anyone was in any doubt about the impact that Brexit will have on British political life and the key issues that affect our citizens, they need look no further than this Government’s programme as outlined in the Queen’s Speech.

What are the great challenges for society today? If you ask young people, housing will be at the top of the list, but the Queen’s Speech promises only:

“Proposals will be brought forward to ban unfair tenant fees, promote fairness and transparency in the housing market, and help ensure more homes are built”—


hardly a bold, creative programme to deal with one of the great crises of our generation. If we skip that generation, many older people might suggest that the issue of social care as they get older worries them most. Despite that being a key issue in the election, though, the most that the Government could promise was:

“My Ministers will work to improve social care and will bring forward proposals for consultation”.


These are the kinds of issues that go right to the heart of the kind of society that we want to live in, where everyone has a decent home and no one fears for their own care as they get older and need help. Just imagine what could be achieved by our brightest and best if they could focus on them.

Yet, alongside vagueness on these issues, the Government programme talked of providing certainty to individuals and business with a Bill to repeal the European Communities Act, an avalanche of further legislation just to ensure that the existing EU protections from which we currently benefit are brought into UK law, and a whole raft of legislation on trade, customs, immigration, international sanctions, nuclear safeguards, agriculture and fisheries.

Part of the Government’s problem is that the referendum result meant different things to different people and that, at the time, the Government were unable to provide any clarity about what the result meant or what would happen next, as no preparation had been done on what Brexit would look like or the detail of what it meant in practice. So, with the new Prime Minister, the Government had to play catch-up to seek to define how they saw Brexit. The answer, initially, was, “Brexit means Brexit”.

The Prime Minister’s Lancaster House speech and the White Paper were early-stage thinking from a Government seeking their way. I think the noble Lord, Lord Horam, said that it was a fundamental error. But we have to move on from there, because that speech and the White Paper did not inspire. It was the Prime Minister’s version of Brexit, on which she sought and failed to gain a mandate from the British people in the general election.

Given that she got her Article 50 Bill through unamended, I will never understand why the Prime Minister then squandered her parliamentary majority through an unnecessary election. She presented that election as a judgment on her leadership and sought a mandate for the Brexit that she had outlined. Her pitch appeared to be basically that she had been questioned and challenged—including by your Lordships’ House—but that she should be allowed to get on with it in whatever way she wanted. It is not unlike Andrea Leadsom criticising the press for being unpatriotic when asking her questions.

Nothing could be more patriotic or more democratic than on this, the most complex and challenging issue of my generation, to question, scrutinise, challenge and offer alternatives. The process of Brexit cannot be led by those who have no doubt. It is only through doubt, careful thought and consideration, analysis and, yes, challenge, that we can achieve the best outcomes. From listening to tonight’s debate, there is wise advice for the Prime Minister and the Government in a number of areas.

First, the Government should be clear that they now accept that, rather than no deal being better than a bad deal, no deal is the worst possible deal. The noble and learned Lord, Lord Brown, disputed that, but I must say to him that any acceptance that we could crash out of the EU on WTO terms obviously creates uncertainty for the economy. It also means, for example, no deal on EU nationals, no deal on data sharing regarding serious and organised crime and terrorism and no deal on the Irish border. It would mean no deal on mutual recognition of environmental regulation or, indeed, any regulatory alignment on standards and enforcement. It would mean no deal on employment rights in trade deals. It would mean no deal on safety regulation of the nuclear industry, as we would have also left Euratom, a point made by the noble Lord, Lord Teverson, and my noble friend Lord O’Neill of Clackmannan. It would mean no deal on the European Criminal Records Information System. The then Home Secretary said in April 2016 how important that was because the Government had checked the details of more than 100,000 foreign nationals against that database. No deal is not just the worst deal: it is irresponsible, dangerous and a failure of catastrophic proportions.

The second piece of advice to the Government tonight is about tone. There has to be a more constructive approach. For the Prime Minister to claim to be a “bloody difficult woman” might play well with some at home, but is curious and unproductive as a negotiating strategy. A constructive tone would achieve so much more. Anyone who has negotiated knows that the tone of the talks, and the relationship and the trust that are built up, are essential for effective discussion and agreement.

A key start on changing that tone would be a unilateral offer on EU nationals. This House offered a way forward for the Prime Minister before she started the Article 50 negotiations. She was warned by my noble friend Lady Symons and others that until everything is agreed, nothing is agreed—so it would be helpful to have that issue resolved at an early stage. As my noble friend Lady Kennedy said, our EU Select Committee report on acquired rights recommended that the Government should,

“give a unilateral guarantee now that it will safeguard the EU citizenship rights of all EU nationals in the UK”,

post Brexit. The report further stated:

“The overwhelming weight of the evidence we received points to this as morally the right thing to do. It would also have the advantage of striking a much-needed positive note for the start of the negotiations”.


It is the right thing to do for common humanity, but it is also the best thing to do for the economy. The Government’s proposals fall short—too little, too late—and there are practical reasons why they seem to me to be unworkable.

The other issue that has been raised in a considerable number of contributions tonight—indeed, it is the subject of my noble friend Lord Adonis’s amendment—is the single market and the customs union. In many ways, this issue comes down to the question of why 52% of the population voted to leave the EU. In reality, the Prime Minister’s “hard Brexit”—which I think should more properly be referred to as “extreme Brexit”—means that the benefits of the customs union and the single market are not even being put on the table for discussion, and that is totally wrong. Our approach on this should be not ideological but pragmatic. The noble Lord, Lord Hunt, said that it should not be a hard or a soft Brexit, and I think that we should look at something different. The choice seems to be between an ideologically extreme Brexit or a pragmatic Brexit that is in the interests of the economy and the people of this country. I am not particularly interested in structures or the mechanisms of how we get there, but we have to ensure that when we negotiate an agreement, the starting point is the single market and customs union that have served this country, our economy and the workers in our economy so well for the past 40 years.

We understand that the Government have to negotiate an agreement that recognises the referendum result, but they must also ensure that the priorities are jobs and an economy that works for the British people. Other noble Lords have said the same thing but I think that we mean different things when we say it. Our starting point is the benefits that we have obtained from the single market and the customs union. We have to be clear about the benefits to and interests of the UK, and also convince the EU 27 that it is not only in the UK’s interests but in the EU’s interests too. It is not our decision alone, and we should start from that point.

In answer to the question from the noble Baroness, Lady Ludford, I did not invent the objective of “exact same benefits”—that is a quote from David Davis, the Secretary of State. He said that we should seek the “exact same benefits” and I am very happy to hold him to it.

A further issue is how to ensure that our new regulatory infrastructure is and continues to be aligned with that of the EU if we are to ensure ongoing trade in goods and services. That is not an abstract concept or burdensome; it is as important as the benefits of the single market and the customs union if we are to continue to trade with the EU. Let us take the European Medicines Agency and the pharmaceutical industry as an example. EMA certification provides companies with market access to around 500 million people across the EU. That market accounts for 25% of sales worldwide. On its own, the UK accounts for just 3%, but it is significant for our economy. I wonder whether the Government understand the professional concerns that are being raised about this. The market is so small in the UK as a whole that companies may decide not to come to the UK, not to invest in the UK and not undertake their research and development operations in the UK. In 2013 this sector provided a trade surplus of £2.8 billion to the UK economy. Squander that and we do a great disservice to parts of our economy and to medicine.

On Wednesday the noble Baroness the Leader of the House did not—perhaps she could not—answer any of my questions about the progress on plans to deal with our leaving the EMA. Those questions were straightforward and they do not apply just to the EMA; they also apply to all the other agencies of which we are a part, including the European Aviation Safety Agency, the European Centre for Disease Prevention and Control, the European Environment Agency and the European Maritime Safety Agency. We have spoken about Euratom. There is also the European Police Office and the European Securities and Markets Authority. When we leave these in leaving the European Union we will need to have something in their place, and not something that is regulatory just at that point in time. If we are going to continue to trade we will need to have ongoing compliance and an ongoing process by which we match what is happening in the EU—otherwise we lose the markets that want to trade with us. We need to know what the Government are doing now to address those issues.

When she was speaking, the Minister implied that we need to ensure that all these matters are resolved within the two-year period. It is right that we should ask what is being done today and what has happened. My noble friend Lady Kennedy and others raised the issue of the ECJ. Whatever you call it, there will need to be a disputes mechanism that is recognised in international law. For those in the party opposite simply to say that we are going to leave the ECJ and not say what will replace it—because they have an obsession with leaving the ECJ, which has served us so well in trade and other areas—is to do a disservice to this country.

The party opposite and the Government have not liked talking about transitional arrangements, so I am happy to call it an implementation stage, if that makes it any easier. I thought that the noble Baroness, Lady Finn, had a very pragmatic approach in her speech to why transitional arrangements will be essential.

I quote my noble friend Lord Mandelson in his excellent article in the Financial Times last week, where he wrote of the “pragmatism and compromise” that the Government need to bring to these debates, taking a “wider view” of the UK, even outside the EU, as an EU partner. That ties in with what my noble friend Lord Cashman said about consensus and the wider agreement that the Government need to seek. You can contrast that approach with this ideological, extreme Brexit. We have to ensure that the Government step back from this and take a pragmatic approach, not just go heads forward, with red lines that may damage our economy and do a disservice to the people of this country.

My noble friend Lady Hayter has already said that we want to ensure that as the process continues we give the best advice that we can to the Government and the House of Commons. We will use all the expertise that this House has to offer to be supportive in getting that pragmatic, practical Brexit that works in the best interests of this country. A vote on our amendment tonight would allow us to reinforce the point that we made in today’s debate, but it would not at this hour reflect the views of the House—but there will be other opportunities to do so, and we will seek those opportunities. Those two key votes on our amendments to the Article 50 Bill, on the issue of providing unilateral guarantees to EU nationals and on the parliamentary process, showed by their massive majorities not just the view of your Lordships’ House but also the strength of opinion in your Lordships’ House. Although the PM cajoled and persuaded sympathetic MPs not to support those amendments, I very much doubt that she would have the same success today.

The Minister spoke about the negotiations and said that she would come to this House to update it; I know that she says that with good intentions, but that is not good enough. There has to be a move not just to update your Lordships’ House but to engage with it, listen to what is said, take note and at times act on what it has to say. For the avoidance of doubt, I want to be clear how we as the Official Opposition will approach legislation, Brexit and others, in this Parliament. Since the general election resulted in a minority Government, most of the debate relating to your Lordships’ House is around the historic Salisbury/Addison convention and whether it still applies. As I set out in my initial response to the Queen’s Speech last week and in media commentary since, the focus of that debate is misplaced; the ultimate purpose of that convention was to guarantee the primacy of the elected House of Commons, which rightly continues to hold. As history tells us, no minority Government can ever take the support of the House of Commons for granted.

On Brexit, and other legislation brought to your Lordships’ House, we on these Benches will continue to fulfil our constitutional duties, examining and debating issues and when necessary seeking amendments for further consideration in the other place. I welcome the comments of my noble friend Lady Jay, with her experience on this issue, with particular reference to statutory instruments. The noble Lord, Lord Strathclyde, tried to make his report an issue between the House of Lords and the House of Commons, but it was not; it was an issue between the House of Lords and the Executive, who send statutory instruments to your Lordships’ House. I have had discussions with the Leader of this House and have given evidence to the House of Lords Select Committee on the Constitution; we need a new committee that will look solely at Brexit statutory instruments. I also call on the Government to commit to publishing all such SIs early on, so that they can be considered and consulted on prior to being introduced in your Lordships’ House.

With a minority Government, there are two areas in particular where the Government need to be aware of the constitutional position and how it would be viewed by Members of both Houses. Clearly, it would be very unwise for the Government to inappropriately use Henry VIII powers in the proposed great repeal Bill as a way of rushing through primary legislation without proper parliamentary scrutiny. With significant clauses not even debated by the House of Commons, your Lordships’ House can provide a useful service to the other place by seeking amendments that would allow the Commons to take part in scrutiny that they would not otherwise be able to.

A number of questions have been raised in tonight’s debate. I hope that the noble and learned Lord, Lord Keen, will be able to answer those but, if not, can he circulate his answers to all Members of your Lordships’ House who have been asking questions tonight? These questions will be returned to and will come up again and again but, so far, the answers from the Government have been far from satisfactory.