Brexit: Withdrawal Agreement and Political Declaration

Lord Aberdare Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Keen of Elie]

I was going to say that, even if the most reverend Primate had contemplated such a thing, he would have left room for repentance.

If we can again trust and comprehend the art of compromise, we can tell the other place that the time has come where the alternatives are worse, that we must respect the decision of the people given in the referendum and that we must proceed with the withdrawal agreement.

I shall touch on some of the observations that were made during the course of this debate. The noble and learned Lord, Lord Thomas, referred to the attempts to secure mutual recognition in the context of judicial issues. I acknowledge that steps were taken to achieve that and that it has not yet been achieved.

The noble Baroness, Lady Thornton, referred to the idea of participation in European Union programmes going forward. That is something that is reflected in the political declaration.

The noble Earl, Lord Clancarty, and the noble Baroness, Lady Manningham-Buller, talked about the need for reciprocal mobility in the areas of science and research. Again, those are matters that will be the subject of negotiation going forward.

The withdrawal agreement is our means of leaving the EU; it is not the determination of our future relationship. That is why, in the context of the future of services, and in particular, financial services, the political declaration includes commitments to co-operation on regulatory and supervisory matters.

In relation to security, the noble Baroness, Lady Manningham-Buller, pointed out how that is preserved going forward, albeit there is the issue of police co-operation, which is so important, but which is maintained beyond the EU by reciprocal arrangements—for example, in the case of Norway and Iceland, which are not within the EU but still are able to maintain the sort of relationship that we would intend to have going forward. In all those areas, we are able going forward to contemplate a partnership with the European Union that will reflect our standards, our concerns, our security and our common interest in these areas.

Can I come on, though, to the Motion that has been tabled by the noble Baroness, Lady Smith? The noble Baroness, Lady Hayter of Kentish Town, touched upon that Motion. I will come on to that in a moment, but in doing so, she also referred to the fact that in recent times we have seen a devaluation in the pound that is without precedent since the war—she mentioned the war. I think she will find that Harold Wilson, with Denis Healey as his Chancellor, devalued the pound/dollar rate from four to 2.8—which was rather more severe than anything we have experienced in the recent past.

Can I come on—

[Noble Lords]

Oh!

[Lord Keen of Elie]

I think that noble Lords will find, if they check the timings, that I am within my time, but even if I am without, I am going to make an observation about the noble Baroness’s Motion.

May I turn to the Motion, in particular its third part? I remind noble Lords of the terms, because they are important. The Motion regrets that,

“withdrawal from the European Union on the terms set out in the Withdrawal Agreement and Political Declaration laid before Parliament would damage the future economic prosperity, internal security and global influence of the United Kingdom”.

Of course, it has been most carefully drafted by the noble Baroness and the ambiguity inherent in it is no doubt deliberate.

We have a situation in which some noble Lords take that third part of the Motion and say, “I think the withdrawal agreement is less than it should be. I believe the withdrawal agreement is not perfect and therefore I can support this part of the Motion. But of course I believe that the withdrawal agreement should be approved in the other place because it is the sensible way for us to go forward and leave the European Union”. There are those of your Lordships who have indicated that that is their understanding of the third part of the Motion. Yet there are others—and I note that the noble Lord, Lord McNally, is one of them—who take that third part of the Motion to say, “The withdrawal agreement is damaging in the following ways and as a consequence I do not support the idea that the House of Commons should approve it”. So there is a clear ambiguity built into the third part of the Motion, when what we really want to send to the House of Commons is a view about what it should do with the withdrawal agreement, not the result of an ambiguous Motion, which would draw some people into approving it because they believe that the withdrawal agreement should not be approved, and others to say, “The withdrawal agreement is less than perfect but it should be approved”. I ask all noble Lords to consider whether they want to be party to such an ambiguous statement.

It is in these circumstances that I thank noble Lords for their attention and invite them to consider carefully whether they are prepared to approve the Motion that is about to be moved.

Digital Economy Bill

Lord Aberdare Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Monday 20th March 2017 Lords Chamber

[Lord Aberdare (CB)]

My Lords, I should like to speak briefly in support of Amendment 29A. Removing merit-based appeals, as Clause 80 would do, seems both unfair to appellants in cases where Ofcom may make decisions that are materially wrong even if they reflect due process, as will inevitably occur on occasion, and undesirable, potentially harming consumers and deterring investment. This seems precisely the opposite of what is needed in such an important, strategic, high-value, fast-changing, innovative and growth-oriented sector.

I will not try to restate the arguments made in Committee, or those made by the noble Lord, Lord Foster. I just make two points in response to the helpful letter from the noble Lord, Lord Ashton, on 14 March. The letter describes the merits appeal as,

“akin to a retaking of the whole decision”,

but an appeal will normally be made only on specific grounds where an appellant believes there is a clear error. So the amendment would not require whole decisions to be re-examined, only those aspects specified in the notice of appeal.

Secondly, I accept that the judicial review process is,

“perfectly able to meet the current EU law requirement that the merits of the case are duly taken into account”

if the judges so decide in a given case. Rather than leaving it to judicial discretion, however, why not spell out in the Bill that they should be taken into account even after they are no longer banned by the EU framework directive, thereby future-proofing it for the post-Brexit world?

Ofcom decisions are of crucial importance for both consumers and telecom providers, and indeed for investors. As we have heard, the change to a judicial review standard is strongly opposed by the great majority of industry participants, from the major incumbents such as BT and Virgin to much smaller, newer market entrants, such as CityFibre, along with the CBI and techUK, the latter representing 900 tech sector companies, the majority of them SMEs.

I claim no specific expertise on judicial review, and I am no great fan of BT, but it is important that the relatively modest requirement set out in Amendment 29A should be incorporated into the Bill.

[Lord Stevenson of Balmacara (Lab)]

Briefly, the ground has been well covered by the noble Lords, Lord Foster and Lord Aberdare, and I have little to add. Three things strike me. I recalled in Committee that this was one of the areas where we had received the most external notifications and correspondence. It is still something that we need to take carefully. As has just been said, it is surprising that almost the entirety of the industry affected by the judgments of Ofcom have joined up to make the case.

Following on from both speeches, what is required is a statement from the noble and learned Lord. I am sure he is straining at the leash to give us all another compromise solution that will do the trick. He is shaking his head; maybe there are other things he has to cover as well. However, the situation seems to hinge on whether Article 4 of the EU directive applies sufficiently well after this Bill goes through, as before. Yet, as has been mentioned, there will be an opportunity, presumably in the great repeal Bill, to cover exactly this point. So what is the hurry?

Digital Economy Bill

Lord Aberdare Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Lord Aberdare (CB)]

My Lords, as I indicated at Second Reading, I am extremely uncomfortable with the proposed shift from a merits-based to a judicial review standard of appeal from Ofcom decisions, and I very much support these amendments moved by the noble Lord, Lord Clement-Jones. Indeed, he has made the case so thoroughly and strongly that I can be extremely brief.

It is inappropriate that in a market as innovative and fast moving—indeed, fast changing—as telecommunications, it should not be possible to test decisions made by the regulator not just on their legality but on their correctness and fairness in terms of the merits of the issues raised. As the noble Lord mentioned, I have received briefings both from Ofcom and from a group representing the bulk of the telecoms industry and industry more widely, through the CBI, as well as from the technological sector through techUK.

I remain slightly baffled at the apparent contradictions between the arguments cited by the two sides. I would encourage the Minister to look very carefully at these arguments to establish as clearly as possible where the evidence points—perhaps one could describe it as the merits of the case—before proceeding towards allowing only judicial review-based appeals.

I will not go through the detailed arguments because there is not a single one on my list that the noble Lord did not cover better that I could hope to do. However, from what I have heard, I am far from convinced that the proposed narrowing of the appeals standard will benefit either consumers or investors—and we need a great deal of investment in this sector—let alone the wider national interest in fostering a fair, competitive and vigorous telecommunications marketplace. I am therefore happy to support either or both of the proposed amendments. I hope the Minister will have another careful look at this issue and consider introducing amendments of his own, designed to ensure that important issues relating to the merits of Ofcom reviews can be properly challenged.

[Lord Lester of Herne Hill (LD)]

My Lords, I support these amendments, which seem a very good compromise. They ensure fairness and balance and avoid the very narrow approach of judicial review regardless of merit in any circumstances, without going into the substance of matters in a way that would turn the review into a whole general appeal. For those reasons, I am glad that the noble and learned Lord, Lord Keen, is taking part in this debate. He will know a great deal about the subject from his private practice as well as his public practice. This is a good compromise. It may be that the Government can come up with something better, but this is certainly better than Clause 75 as it stands.