Brexit: Further Referendum

Baroness Wheeler Excerpts

Thursday 17th January 2019 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Lord for his Question and his speech, and thank other noble Lords for their contributions and expertise, in particular on procedural and technical aspects of the possibility of a second referendum. This is certainly a pertinent Question for Short Debate following the massive defeat in the Commons of the Prime Minister’s withdrawal agreement. Although I think that this Question is premature at this stage, noble Lords are right to ask questions now in case the logjam is such that a second referendum becomes the only answer.

The UCL Constitution Unit’s October report is enormously useful to today’s debate, and I too commend the excellent Library briefing on this. UCL rightly points out that many of the questions are ultimately for politicians to decide, and I shall direct most of my questions to the Minister for that reason.

I hope that in response the Minister will address the actual issues and questions raised by noble Lords rather than just resort to the usual government rhetoric of dismissing the issue as an affront to democracy or a betrayal of the people. As the Minister knows, there is growing support for the need for a second referendum in the face of the chaos we are facing. Today’s letter in the Times from more than 170 significant business leaders supporting a further referendum underlines this and adds to the support from across communities, not just from former remainers. The Labour Party view remains that which we agreed at our party conference last year:

“If we cannot get a general election Labour must support all options remaining on the table, including campaigning for a public vote”.


The clear priority at this point must be to find a way through the impasse.

As noble Lords have said, it is clear from the Constitution Unit’s report that any referendum would take around 22 weeks, or five months. Do the Government agree with this timetable? Given that timescale, the report is also clear that any such referendum would require the extension of Article 50. Can the Minister say what preparations the Government have made for the possible extension of Article 50 and whether any discussions have taken place with the EU at any level regarding an Article 50 extension? I hope that the answer to these questions is not “None”. After the billions of pounds spent preparing for a no-deal Brexit, it would seem ludicrous that no preparations or discussions had taken place for what seems increasingly inevitable.

I also ask the Minister: in the event of the House of Commons voting for a second referendum, will the Government respect that decision and give time for a Bill, such as that tabled by his colleague, Dominic Grieve MP, if the House of Commons wanted it? I would also like reassurance about the process for determining the questions put in any second referendum, taking on board the concerns in the Constitution Unit report that a binary question may not give a clear answer. I also ask for reassurance that the Government will not seek to put no deal on any such ballot paper.

European Union (Withdrawal) Bill

Baroness Wheeler Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, your Lordships will know that I took part in the debate on the amendment tabled by the noble Lord, Lord Warner. A clear decision on this matter was made by the Court of Appeal long before Brexit; it exists in our law and is based on European law. I know of no better assurance than that. The principle is clearly set out in the Court of Appeal and the High Court judgment in the packaging case. I do not know the nature of the legal advice to which the noble Baroness referred, but there are legal advices and there are legal advices. My advice is certainly very clear: if you have a judgment of the Court of Appeal on European law, which was part of our law before Brexit, under the retained law arrangements it will be part of our law after Brexit. If I had any reason to suppose that this amendment had been proposed according to that legal advice, I would feel that the amendment that we had before was, if anything, rather better.

[Baroness Wheeler (Lab)]

My Lords, on behalf of my noble friend Lord Hunt, who is unable to be here today, I fully support the amendment of the noble Baroness, Lady Finlay. It was helpful to be reminded of the strong concerns expressed on Report; I also endorse the comments made by the noble Lord, Lord Warner. It is important to have clarification that the need to preserve Article 168 of the Lisbon treaty as part of retained EU law is recognised, and I look forward to hearing the Minister’s comments.

I commend the Minister’s willingness to work with noble Lords across the House on this important matter and his helpful role in facilitating this and working through the issues referred to by the noble and learned Lord, Lord Mackay. Article 168 places public health protection and health improvement at the epicentre of policy-making, and the Government’s assurances that our domestic law implementing EU public health requirements will continue to be interpreted by reference to relevant EU law, including Article 168, will be welcome.

The Minister’s assurance of the Government’s commitment to ensuring that the UK remains a world leader in public health following Brexit would also be welcome. I hope he will provide the House with this, to be noted for the record.

Finally, it is important once again to pay tribute to and place on record the work of the wide coalition of major public health bodies, medical colleges, charities and the wider health community in helping us, one hopes, reach a consensus on the way forward.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

I thank the noble Baroness, Lady Finlay, for bringing back this important amendment before your Lordships’ House. I do not think I have ever drunk as much tea as I have in the past week or so as I have met various noble Lords and noble Baronesses, but it has been worth it.

I shall be a little more specific in the words I read out because we need on this occasion to give noble Lords the exact words that I hope they require. Before doing that, I should pay tribute to the noble Lord, Lord Warner—to say that he has been spirited would perhaps be an understatement—and to my noble and learned friend Lord Mackay, who is right about there being legal advices and legal advices, but I would much rather have his advice than that of others.

Let me tell your Lordships a little more about the effect Article 168 of the Treaty on the Functioning of the EU will have after we leave. It is right that we pay tribute to the Faculty of Public Health and the 62 organisations that have contributed to keeping this issue at the forefront of your Lordships’ House’s discussion. An important coalition has been assembled. I would like to think that there is now genuine recognition on all sides of the Brexit argument that public health must be at the epicentre of our engagement. There should be no back-rolling in any of the health standards. The Faculty of Public Health has been at the forefront of public health, and will continue to be so. That is important to put on the record today.

Many noble Lords have spoken eloquently of the importance of Article 168, notably its role in a successful defence to the legal challenge brought by tobacco manufacturers against the introduction of plain packaging. We therefore recognise why noble Lords are keen to confirm the Bill’s effect in that area. The Government should have been clearer on this matter in previous debates and I welcome the opportunity provided by the noble Baroness, Lady Finlay, to provide that further clarity.

The Government fully expect that, after exit, Article 168 will continue to be influential to the interpretation and application of retained EU law. This may include the determination of legal challenges to which Article 168 is relevant, including the consideration of public health legislation before exit day. As was noted on Report in this House, although Article 168 is not a directly enforceable provision of the TFEU, it has nevertheless been influential on EU and domestic law in the area of public health. I reassure the noble Baroness that when retained EU law is interpreted and applied, any such influence will be preserved by this Bill.

The Bill is intended to capture EU law as it stands at exit day and, as we have previously discussed, incorporate it into domestic law. Clause 2 preserves domestic legislation that implements or relates to EU law, including that in the area of public health. It is preserved,

“as it has effect in domestic law immediately before exit day”.

This will include, for example, the effect given to the Standardised Packaging of Tobacco Products Regulations 2015 by the tobacco packaging case, which, in a sense, echoes the words of my noble and learned friend Lord Mackay of Clashfern. Similarly, Clause 3 incorporates direct EU legislation, such as EU regulations relating to nutrition and food safety into domestic law,

“as it has effect in EU law immediately before exit day”,

and Clause 5 provides that any rights, powers, liabilities, obligations, restrictions, remedies and procedures that were recognised and available in domestic law immediately before exit by virtue of Section 2(1) of the European Communities Act,

“continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.

I had to get that exactly right; I hope it is. Therefore, any rights or obligations that have been drawn from Article 168 will be preserved as part of retained EU law.

Clause 7 is also important because it ensures that retained EU law is interpreted in accordance with relevant pre-exit case law. This means, for example, that domestic law implementing EU public health requirements will be interpreted by reference to relevant EU law, including Article 168. As my right honourable friend the Secretary of State for Health wrote on PoliticsHome on 18 April:

“Our guarantee of equivalent or higher standards of health protection and health improvement when we have left the EU is unequivocal”.


The influence of Article 168 of the TFEU on retained EU law, and existing duties such as those in the NHS Act 2006 and Article 12 of the International Covenant on Economic, Social and Cultural Rights will enable us to do this.

I am sorry that on this occasion I cannot therefore accept the amendment in the name of the noble Baroness.