Arrangement of Business

Debate between Lord Adonis and Lord Foulkes of Cumnock

Monday 18th March 2019 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I genuinely thank the Government Chief Whip for listening sympathetically and agreeing to the specific suggestion I made last Thursday. I hope this will create a precedent.

[Lord Adonis (Lab)]

My Lords, I too thank the noble Lord, Lord Taylor, for his very considerate response to our discussion last Thursday and I recommend that, if he were to take further advice on the organisation of business from my noble friend Lord Foulkes when he offers it, the House would be in a good place. However, the contents of the Chief Whip’s statement is deeply concerning, because the House of Commons resolved by a decisive majority last week not to proceed with no deal. The Government have effectively said that, in the event of their not being able to reach agreement with the European Council this week, they are still keeping no deal on the table, even though it is open to Her Majesty’s Government to take it off the table at any moment by rescinding the notice under Article 50. If the Government were acting in accordance with the will of Parliament, they should, if they cannot reach a deal with the European Council this Thursday and Friday, rescind the notice under Article 50 and not put the country and Parliament through a no-deal Brexit.

The idea that, because we are considering these statutory instruments for 20 or 30 minutes apiece, the nation is somehow better prepared for the horrors of a no-deal Brexit is straightforward Alice in Wonderland. It will be catastrophic for the country if the Government put us through a no-deal Brexit. Parliament has already told the Government, who are supposed to be the Executive and to execute the will of Parliament, that it does not want to see a no-deal Brexit. It is absolutely within the power of Her Majesty’s Government to prevent a no-deal Brexit by withdrawing the notice under Article 50 and it is a complete mystery to me why the Government utterly refuse to follow the wishes of Parliament, which have been so emphatically expressed.

Business of the House

Debate between Lord Adonis and Lord Foulkes of Cumnock

Thursday 7th March 2019 Lords Chamber

[Lord Adonis (Lab)]

My Lords, the noble Lord, Lord Empey, makes an extremely strong case. Surely the presumption should always be against an extraordinary procedure. We have had this a number of times in respect of Northern Ireland legislation, and the case being made by Members of the House from Northern Ireland seems to me to merit very serious consideration by the Leader.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I also support my noble friend Lord Empey, who I have known for a long time and who was a very distinguished Minister in Northern Ireland. He knows a lot about Northern Ireland legislation. It is not just that the Northern Ireland Assembly is not sitting at the moment—which is a very strong argument. It is also about the business of this House. I know that my noble friend Lord Adonis will agree that for the past few weeks, and in the coming few weeks, our Order Paper has been full of hundreds of statutory instruments, most of which we hope will not be needed. We heard earlier from the Home Office Minister, the noble Baroness, Lady Williams, in reply to one Question, that no deal was an unlikely outcome.

It is outrageous that Northern Ireland legislation, which is important and which we should be looking at in detail, is not looked at properly, whereas we are being flooded with all these statutory instruments, hundreds of which we hope will be totally unnecessary and void. I strongly support the noble Lord, Lord Empey, and I hope we can say that support in this House is coming from all sides, just as it did in the House of Commons.

Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Foulkes of Cumnock

Tuesday 12th February 2019 Lords Chamber

[Lord Foulkes of Cumnock]

I apologise. The noble Baroness, Lady McIntosh, is also doing so. My argument is falling apart here.

I asked why the noble Lord, Lord Strathclyde, and others were not doing it. He said, “Because we accept without question what the Government are putting forward”. To do so under normal legislative circumstances would be bad enough, but when they are rushing through statutory instruments by the hundreds, it is even worse. As I said then, what else are we here for? What is the purpose of the House of Lords? Our only substantive purpose is to scrutinise primary and secondary legislation. If we do not do that, then we all might as well stay at home. I am sure that Mrs May, Mrs Leadsom and others would love that.

The noble Lord, Lord Deben, spoke about the customers. Any customer or passenger listening as carefully to the Minister’s introduction as I did—this is the second or third time I have heard this explanation—may be as baffled as I am. There are still questions; my noble friend Lord Berkeley has asked some of them, and my noble friend Lord Adonis intervened with some about a whole range of things concerning UK carriers. They arise in particular with British Airways and Iberia. As I understand it, the headquarters of the latter are already in Madrid. I do not know whether they count. My noble friend Lord Whitty, who is an expert on aviation and vice-president of BALPA, is nodding. Iberia is a Spanish company, not a British company. Any passenger listening to the Minister will find it very difficult to know exactly what their rights are and how they will manage to get flights in the event of no deal. It will be chaotic, there is no doubt about that. We saw in the debate about which I have spoken how there will be chaos in healthcare if we leave with no deal. Our 27 million EHIC cards will no longer be valid throughout the European Union. We could go through area after area of problems.

We are going through all these SIs and Bills. I heard Andrea Leadsom, Leader of the House of Commons, say on Radio 4 this morning that, “There will be no problem getting all the legislation through by the end of March”. She was accused in the other place of lying, and the leader of the SNP had to withdraw. But he was absolutely right.

[Lord Adonis]

If my noble friend will forgive me, is he aware that the Prime Minister said two hours ago in the House of Commons that the Government would enact all the consequential legislation on a deal—if a deal is agreed—by means of emergency legislation? Whatever period of time is left at the end of March, which could be as little as two or three days, it will all be rammed through. Does he share my acute concern at the idea that this House might be faced with emergency legislation procedures to carry through some of the most significant legislation in the history of Parliament? Does he agree that some of us might think this unsatisfactory, and will certainly not be party to such an abuse of the constitution?

[Lord Foulkes of Cumnock]

My noble friend has stolen my peroration. He is absolutely right and said it much better than me. It is a frightening prospect that if nothing is agreed, nothing is approved, by the end of March we will face emergency legislation.

Financial Services (Implementation of Legislation) Bill [HL]

Debate between Lord Adonis and Lord Foulkes of Cumnock

3rd reading (Hansard): House of Lords
Wednesday 6th February 2019 Lords Chamber

[Lord Adonis (Lab)]

My Lords, when the Minister spoke on 4 December at Second Reading, he said that the Bill was part of a package of measures and statutory instruments to ensure that the financial services industry would be covered in the event of no deal. He said specifically:

“That stability and continuity is being delivered by the 60 or so statutory instruments that Her Majesty’s Treasury is introducing under the European Union (Withdrawal) Act 2018”.—[Official Report, 4/12/18; col. 934.]


Will the Minister tell us how many of those 60 or so statutory instruments have been laid before Parliament, and would he be in a position to write to me to tell me what the timetable is for laying those that have not yet been laid before Parliament before 29 March?

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, before the Minister answers those questions, may I ask one of my own in relation to the report of the Delegated Powers and Regulatory Reform Committee? Will the Minister tell the House whether and how the recommendations in paragraphs 8, 16 and 19 of that report have been dealt with?

Healthcare (International Arrangements) Bill

Debate between Lord Adonis and Lord Foulkes of Cumnock

2nd reading (Hansard): House of Lords
Tuesday 5th February 2019 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, before I revert to my usual mode of careful scrutiny, I offer a sincere triple congratulations to the Minister: first, on her elevation to this place—she did a great job in the other place and we welcome her here—secondly, on her appointment as Minister; and thirdly, as the noble Lord, Lord O’Shaughnessy, said, on a really excellent maiden speech. She comes to us with a great reputation and, I understand, undoubted ability. Given this Bill, she is going to need a lot of that.

This is an astonishing piece of legislation. With respect, relatively few have understood the wide and serious implications—and the consequences—of this Bill. I am astonished that the Scottish Government have not seen the implications, and that some of my colleagues down in the other place have not yet seen them. Thankfully, our Delegated Powers and Regulatory Reform Committee has understood it and produced a very good report. I am particularly grateful to the noble Lord, Lord Blencathra, and his colleagues for it. It particularly refers to Clause 2. I have read a few reports in my time, but this is really quite devastating. I will quote from it:

“We draw attention to clause 2 of the Bill. If the reason for the Bill’s introduction is to protect British citizens if a ‘no deal’ scenario affects current reciprocal healthcare agreements with other EU countries”,


which it does,

“clause 2 of the Bill goes considerably wider. It allows the Secretary of State to make regulations”,

first,

“in relation to the payment by the Secretary of State of the cost of all forms of healthcare … provided by anyone anywhere in the world”—

astonishing—secondly,

“for and in connection with the provision of any such healthcare, provided by anyone anywhere in the world”,

and thirdly,

“to give effect to international healthcare agreements”.

It goes on to say:

“Clause 2 has a breath-taking scope. Indeed, the scope of the regulations could hardly be wider … There is no limit to the amount of the payments … There is no limit to who can be funded world-wide … There is no limit to the types of healthcare being funded … The regulations can confer … powers and duties … on anyone anywhere … The regulations can delegate functions to anyone anywhere … the regulations can amend or repeal any Act of Parliament ever passed”—


astonishing powers—and that:

“The Government say that clause 2 ‘enables the Secretary of State to address essential matters relating to healthcare abroad’. But the powers in the Bill go much wider than essential matters”.


It continues:

“All regulations made under clause 2 are subject only to the negative procedure”.


My noble friend Lord Adonis knows that that is a very—

[Lord Adonis (Lab)]

Dangerous.

[Lord Foulkes of Cumnock]

—dangerous procedure, but also that there is very scant scrutiny in that procedure. The report states that the regulations are subject to the negative procedure,

“save where they amend primary legislation. If, without such amendment, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure”.

It is really quite astonishing. That is a great report. I could not have done better myself.

[Lord Adonis]

Why Arizona?

[Lord Foulkes of Cumnock]

Anywhere. That is just a random choice. It could be Texas or Alaska—it would be a bit more expensive in Alaska.

That is a really wide provision. Before we finally pass this Bill, Clause 2 needs drastic amendments. I say to my noble friends on the Labour Front Bench, to my friends—and they are my friends—on the Liberal Democrat Front Bench, to members of the committee and to Cross-Bench and Conservative Members that I hope that we will see those amendments in Committee. I hope that we will properly scrutinise this Bill because it has not yet been done.

The inevitable consequence of the Bill is to replace a system that works well and gives peace of mind to many thousands of British citizens with completely unnecessary worry and uncertainty. Whatever the Minister says, it will be about damage limitation. Of course, the worst of all options is no deal, which would immediately remove the guarantees which British citizens living in the European Union and European Union citizens in the UK currently take for granted. That the no-deal option is still on the table is an indictment of the Government and their failure to face up to the consequences of their attempts to appease the hard right of the Tory party. All we are offered by the Bill is uncertainty and “Trust the Minister; everything’ll be okay”. The Bill allows her or him to do just about anything, but instructs them to do absolutely nothing. That is a recipe for uncertainty.

Let us first take the S1 scheme, which is central to this debate. This allows individuals from one EEA member state to receive healthcare in another, with the cost of that care met by the state in which the patient would ordinarily reside. Some 190,000 UK pensioners living in the European Union or the EEA are currently registered for this scheme. What happens to their rights if we leave without a deal? Many would have to return to the United Kingdom in fear of facing astronomical health bills elsewhere. That would affect not only those currently benefiting from the S1 scheme but the NHS, which would have to take the strain of the increase in number of elderly returning citizens. A report by the Nuffield Trust estimated that if expats returned in large numbers, we would require 900 extra beds and over 1,000 more nurses. Where would they come from? It certainly would not be from European Union countries, since the Government are already busy telling them that they are not really welcome in the United Kingdom.

That brings me to the EHIC. I hope that everyone has it. I have mine. Every time I go abroad, I take it with me. We rely on it to make travel abroad a possibility. At present, 27 million active United Kingdom EHICs are in circulation. They are used to pay for around 250,000 medical treatments each year. Incidentally, I tried to find out how to apply for or to renew an EHIC. I put “European health insurance card” into the Google search. I pressed it and what did I get? “This page cannot be displayed”. We cannot find out. Can the Minister tell us why the Government are not allowing people access to the EHIC? Is it in anticipation of a decision relating to it? Is it in anticipation of a deal or no deal?

[Lord Adonis]

“Alternative arrangements”?

[Lord Foulkes of Cumnock]

If we lose this right, the only ones celebrating will be the insurance industry. When I tweeted something about the EHIC no longer going to be available, lots of people tweeted back saying, “Ah, but we can get travel insurance”. That is all right if you are reasonably wealthy, but for ordinary people who have struggled just to get enough money to go abroad, it is an extra cost.

These arrangements are the cornerstones of the freedom of movement principle which the European Union rightly sees as its own but which the UK Government, sadly, are hell-bent on opting out of. There are those who point to the deal that the EU has with Switzerland at present. It is true that, under the Bill in the event of no deal, we would be able to implement new bilateral agreements with European Union states, Norway, Iceland and Switzerland. This would be lengthy and costly, ultimately leaving the European Union without reciprocal arrangements for an unknown period. I raised this with the Minister and her counterpart in the Commons when they kindly held a briefing on it. They would be scrabbling around the European Union—indeed around the world—negotiating bilateral agreements. If the Health Secretary is as successful in doing deals as the Trade Secretary, there are going to be an awful lot of sick Britons scattered around the world for years to come.

We need to approve the Bill—of course we do; the Minister said it; the noble Lord, Lord O’Shaughnessy, said it—but with some appropriate and significant amendments to Clause 2. Without it, the Secretary of State will not even be allowed to do the deals which will protect British citizens abroad. However, there should be no doubt at all that the very good arrangement which we have at present is being replaced by, at the very least, an inferior one. It remains to be seen if the operative word really is “inferior” or if, as I fear, “disastrous” is a better way to describe what we are facing if we go for no deal. I hope everyone in this House will do everything they can to ensure that that does not happen. For the health of British expatriates and of those of us who travel overseas, it is vital that we do so.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Debate between Lord Adonis and Lord Foulkes of Cumnock

Tuesday 29th January 2019 Grand Committee

[Lord Adonis]

My Lords, that is a completely inappropriate intervention. My noble friend was not present at the beginning of the debate because he was in the Chamber debating no-deal regulations. It is the Government’s fault that no-deal regulations were being debated in the Grand Committee and in the Chamber at the same time.

[Lord Foulkes of Cumnock]

I am most grateful to my noble friend. I take great exception to what the noble Baroness said. I am surprised that she knows a lot about convention, as she has not been here very long, but obviously she has picked it up from somewhere. Conventions are conventions, not rules that need to be and must be obeyed. I understand that one of the conventions is that when Ministers are explaining something and are asked a question, they normally give way and answer it. In all the Grand Committees that I have been in, throughout the years—I have been in a number—the Minister has given way. Of course, we are getting used to the noble and learned Lord, Lord Keen, by now.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, it is not often that I confess to feeling sorry for the noble and learned Lord, Lord Keen, but on this occasion I do, and in the presence of a number of other distinguished lawyers, who have considerable experience of commercial litigation involving cross-border and cross-European border disputes. It is almost impossible to overestimate the importance of the regime that we have built up across the European Union for the resolution of issues of jurisdiction, recognition and enforcement in civil and commercial disputes. We have been promised so many times, in debate after debate on the Brexit issue, that we would not be in this position. The Government were going to get a deal, and one of the first things they would insist on in getting it is that we would preserve the cross-border jurisdiction, recognition and enforcement issues, or rules that we have built up with Brussels Ia.

We are in this position now; I entirely accept that the Minister opened this debate on these regulations on the basis that the Government are still hoping for a deal and that if there is a deal, we will continue along the course of resolving this issue. But it was with horror that many of us heard the noble Lord, Lord Callanan, last night refuse to accede to the Motion of the noble Baroness, Lady Smith, because it ruled out no deal—which it did not—and for him and the Government to be so prepared to countenance no deal.

In our view and that of almost every commercial lawyer with whom I speak, the issues surrounding cross-border litigation are being given far too little prominence and importance. What we are losing is clearly defined in the Explanatory Memorandum as,

“a system of uniform jurisdictional rules to identify the appropriate court in which to bring a civil law or commercial claim”—

that is the first bullet point on page 2—and,

“a simplified mechanism to recognise and enforce the judgment EU Member State/EFTA state courts in civil and commercial cases, with a view to reducing costs for litigants and increasing efficiency. The possibility for such simplified and almost automatic treatment of the judgment of one such state in another is based on the ‘mutual trust’ that each state will have applied the uniform rules of jurisdiction”.

This statutory instrument, subject to some relatively minor exceptions, effectively revokes Brussels Ia, which is at the heart of the Brussels regime. It is also significant that it abandons the European Judicial Network, which has been a forum for judicial co-operation of great use throughout the European Union, and does so with no replacement. The very limited exceptions that I mentioned were mentioned by the Minister: some consumer and employment cases—in British courts, of course—transitional cases and the choice of courts arrangements under the Hague Convention. That is, to coin a phrase used by some Brexiteers in the past, thin gruel indeed compared with the widespread benefits that we get from the system of judicial co-operation and our current arrangements.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I am grateful to my noble friend for what he said. I was participating in a debate on the other statutory instruments we are dealing with, as was confirmed by the Bench opposite.

Until I heard the excellent speeches from noble Lords on the Liberal Democrat Front Bench and the noble and learned Lord, Lord Hope, I had not realised what a vital issue we are dealing with. As my noble friend Lord Adonis said, we are not dealing with it line by line in the detailed way that we would normally deal with something so important. Even worse, there has not been proper consultation. We have not heard the views of a widespread group of lawyers: only a few have been consulted. If we had had a wider consultation, the lawyers might have been able to point out some of the difficulties that might arise. We could end up with some unintended consequences because of a lack of scrutiny not just in here but outside. Does my noble friend agree?

[Lord Adonis]

My noble friend makes a very powerful point. Paragraph 10 of the Explanatory Memorandum says on consultation:

“A formal consultation on these legislative amendments has not been carried out”.


I do not know why the relevant Delegated Powers Committee did not highlight that as an issue before the House. The noble and learned Lord, Lord Hope, in a very telling intervention—as a former head of the Supreme Court—talked about the wider impact of leaving the European Union on our legal system and on the recourse that individuals and bodies corporate have as a result of losing all the benefits of EU membership. Given the scale of those concerns and losses, I would have thought that a formal consultation should have been the first thing to be carried out in respect of this statutory instrument.

Although my noble friend Lord Foulkes and I lack expertise in many of these areas, we can see the common themes because we have been present for the statutory instrument debates on all these subjects. One common theme is that of the Government seeking to hustle through these regulations with minimal debate; the other is very inadequate consultation. The consultation has been so inadequate because it simply would not have been possible to conduct a consultation according to the normal Cabinet Office rules of publishing draft instruments, which require: 12 weeks of formal consultation; assessment of the consultation responses; their publication; and the Government response to the consultation, all within the timescales available. The normal standards of good government, which my noble friend and I remember in the far distant days when we had Governments that sought to improve the country and not wreck it—as we have at the moment—simply do not apply any more.

Indeed, it is not just that there was no formal consultation, which we read in paragraph 10.1. Paragraph 10.2, which is suspiciously familiar to Members of the Grand Committee because we have had variants of it time and again too, states:

“The Government’s basic approach … has been discussed with a number of members of the legal profession”.


Which members? Perhaps the noble and learned Lord will tell us when he responds, if he intends to respond to any of the points raised in the debate. On what basis did the Government choose those members? Why has the list of those consulted not been published? Lastly, I put a fair question to the Delegated Powers and Deregulation Committee, which examined these regulations: why did it not seek to bring before the Grand Committee a statement about the consultation processes that were actually undertaken?

My noble friend and I remember that in other cases, we have seen in Explanatory Memoranda that the Government consulted “selected” and—what was the phrase?—“trusted” members of the relevant industry. Members of the Grand Committee who were present for that debate will recall that we had a long discussion about what “selected and trusted” means. We did not think that the phrase included my noble friend Lord Foulkes and myself because, clearly, we are not trusted by the Government to engage in scrutiny or else the noble and learned Lord, Lord Keen, would have allowed us to intervene on his remarks. However, it is important that the Grand Committee understands who the Government are consulting so that we can also understand who they have been listening to, as well as on what basis they have made any changes to the drafts. Those who were consulted as set out in paragraph 10.2 is therefore important.

I want to make a few remarks on the statutory instrument. I was struck by the remarks of the noble and learned Lord, Lord Hope, about the wider context. I hope that the Minister might tell us more about that in terms of what rights will be lost and what the losses will be to the country as a result of not having reciprocal arrangements. As a complete layman, what I do not understand from reading the document in its entirety as regards the Brussels regime is that looking at the dates, the Brussels regime predates British membership of the European Community. I believe that the document dates from the 1960s and is known as Brussels Ia. We have a number of different variants in the Brussels regime that go back to 1968, which of course was five years before the United Kingdom joined the European Community. That raises a big issue.

Unless someone can correct me, as I understand it, the Government are proposing to withdraw from the Brussels regime. The noble Lord, Lord Marks, made a point that ought to be brought out more; indeed, it was mentioned by the noble Lord, Lord Beith, too. It appears that a very important policy decision has been taken in this statutory instrument: not to leave retained EU law static on departing from the European Union, which is the default procedure under the European Union (Withdrawal) Act, but to make changes. I am not technically competent enough to understand the changes fully, but the Government have glossed over changes in paragraph 12.1 covering the difference in quantifiable terms between making no changes to retained EU law and changing it.

The question that I would like to put to the noble and learned Lord is: if we were part of the Brussels regime before we joined the European Community—he is going to correct me, which is good, because this is exactly the kind of knowledge that the Grand Committee needs—why do we not simply revert to the position before 1973 rather than go to the new position that the Government are establishing under this statutory instrument? Perhaps he could explain the benefits of the new position. Looking at all the lawyers nodding their heads in the Grand Committee, I may have misunderstood the position. All I can say is that, if I have misunderstood it, I suspect that many members of the general public will have misunderstood it, too, so I look forward to the House doing what it is supposed to do on these occasions and elucidating the real state of play.

The other fundamental point, which was mentioned by the noble Lords, Lord Beith and Lord Marks, is the highly contradictory and misleading impact statement in paragraph 12.1. It seeks to minimise the impact by relating it simply to the difference between making no changes to retained EU law, if we crash out with no deal, and making the changes that are set out in the statutory instrument, rather than relating it to the much wider context of the impact on reciprocal rights, the ability to enforce those rights and so on that arises from leaving the European Union without a deal. Even during this debate, because I have been so restrained in my interventions, I have not been able to understand fully what has been said. The noble Lord, Lord Marks, referred several times to satellite litigation. I do not understand what satellite litigation is. Could the noble Lord explain?

Patents (Amendment) (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Foulkes of Cumnock

Monday 14th January 2019 Grand Committee

[Lord Adonis]

The noble Lord makes a very good point. The Minister himself played no part in this process. All he can do is read out messages passed to him by officials. I do not hold him responsible in any way. Nobody was suggesting for a moment that he was personally responsible for engaging in this consultation and has therefore given misleading information to the Grand Committee. The point is that the House needs to know the truth.

I will make one remark on what the noble Lord, Lord Deben, said. He said it is hard to be precise about what happened if conversations took place during informal, as opposed to formal, consultation. However, there is a difference between informal consultation and no consultation whatsoever. The point made by my noble friend Lord Warner is that it appears not that there was informal as opposed to formal consultation, but none whatsoever. No conversations took place between the relevant trade bodies and companies, and the authorities responsible for drawing up these regulations. That is what he said, and it is of huge moment to the House. Using the word “informal” does not excuse these consultations being non-existent, which is the issue before the Grand Committee.

I return to the third thread of concern we have about the whole way in which these statutory instruments are being conducted. First, they depend on us believing the impossible proposition that no deal is not itself going to make a fundamental difference. The second issue we are constantly wrestling with is the inadequate or non-existent consultation. The third is the inability of Ministers to answer the points raised in the debate. That has been a running theme in these discussions. What happens—I dare say this will happen again when the noble Lord, Lord Henley, responds to this debate—is that the Minister restates the case for the statutory instrument that he made at the beginning. He selectively answers one or two points—to give him his due, he has just given a list of organisations that he said were informally consulted; it may or may not be accurate, but we need to establish that—but most of the points raised in the debate are not answered at all by the Minister. To be fair to him, the Minister himself played no part in this consultation and is simply having to read notes given to him by officials, who may themselves have been at some distance from the consultations that took place.

We are then expected to approve these regulations. Because of the inadequate arrangements for the scrutiny of statutory instruments—a point made very eloquently by the noble Lord, Lord Tyler, in earlier debates—we then have no further recourse. We cannot do what happens with primary legislation in this House, which is that we have a Committee stage, we can move amendments and probe the Government further, and the Government are under an obligation to come back to the House with further information. None of that happens. The only recourse we have is to seek to repeat this debate by referring the statutory instrument to the House and hoping—we then have no ability to amend it or to move amendments—that when the Minister comes to make the next speech in the House, he will respond to the points raised in the Grand Committee.

That leads me to an important point about how we handle these statutory instruments when they go to the House. On each of these statutory instruments that we have been debating and doing our best as Members of the Grand Committee to scrutinise, a lot of concerns have been raised but not met by the Government. I see that my noble friend Lord Foulkes is a member of the Liaison Committee and the Procedure Committee. He is a real power in the land in this House. Most of us are never admitted to the inner sanctum of these bodies, but he is. It is extremely important that Ministers write to Members of the House setting out their response to all the issues raised in the Grand Committee before the House comes to debate these regulations, so that we can then properly consider the adequacy of the Government’s further response. Let us consider the vital issue of consultation, which has been raised by my noble friend Lord Warner and on which I do not think the Minister is going to be in much of a position to comment, because he is dependent on notes passed to him by officials who are one stage removed from the consultation anyway. The House would expect a full statement to Members on what happened in the consultation—who was consulted, on what basis, what they said and what the Government’s response was—before this statutory instrument is debated in the House.

We need some mechanism—perhaps it is the Liaison Committee. Perhaps my noble friend Lord Foulkes, who takes on many public responsibilities, should take it upon himself to see that this process is conducted in a timely and adequate fashion before the House debates statutory instruments. I do not know whether my noble friend would be willing to take on that responsibility, but I am volunteering him. Otherwise, he may have a suggestion that we as a Grand Committee can then make for who should undertake this responsibility.

[Lord Foulkes of Cumnock]

I shall pretend to be a Minister and say that I shall look at that very carefully.

[Lord Adonis]

In the want of a better solution, I shall recommend to the Government that my noble friend Lord Foulkes should take this on, because on the basis of the debate that we have had so far, we will not have confidence that this procedure will be conducted unless there is an impartial referee to see that it has taken place.

I turn to a new issue of substance in the regulations. Many Members of the Grand Committee will have been briefed, as has my noble friend Lord Warner, by those directly concerned by the issues raised in the regulations and whether, as the noble Lord, Lord Henley, said, they do indeed make minimal changes to the existing regime, allowing for the fact that we are in a no-deal situation. I draw the Grand Committee’s attention to and ask the Minister to respond to arguments being put before Members by Bristows, a law firm which specialises in patent law. It has raised a serious concern about the regulations, specifically the adjudication mechanism. I set that concern before the Grand Committee and hope that the Minister will respond.

Bristows states that the amendments have potential ambiguity in the following respects. They provide that a declaration of invalidity of a supplementary protection certificate may be submitted to the “comptroller or the court”, in the words of the regulation, with the court being the Unified Patent Court if the basic patent is subject to the Unified Patent Court’s jurisdiction under Schedule 4 to the Patents Act 1977. However, under Schedule 4, the UPC has exclusive jurisdiction for invalidity actions of a supplementary protection certificate based either on a unitary patent or a European patent. Therefore, Bristows argues, the court referred to in the context of the “comptroller or the court” in the draft statutory instrument, when interpreted in the light of the Patents Act 1977, will, for those supplementary protection certificates, be the Unified Patent Court.

Further, as stated in Schedule 4 to the 1977 Act, the Unified Patent Court should have exclusive jurisdiction in such cases. “However”, Bristows asks,

“what is the impact of the reference to ‘the comptroller’ in the expression ‘the comptroller of the court’? Does this leave this national UK authority … with jurisdiction as well as the UPC? The natural meaning of the Statutory Instrument … suggests that there remains additional jurisdiction in the hands of the Comptroller as well as the Court … even if this was not intended. In consequence, it may remain possible for SPCs based on unitary patents to be invalidated in the UK”.

This looks to be a serious concern. I freely confess to the Grand Committee that, not being a patent lawyer myself— my noble friend Lady Kingsmill is, so she may be able to add to this—I do not entirely understand the impact of this concern, but Bristows believes it may be serious. The Grand Committee would be very grateful for an answer to Bristows’ concerns when the Minister replies. If he cannot give one in detail today, perhaps he can include it in his written response to Members of the Grand Committee after the debate.

Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Foulkes of Cumnock

Monday 14th January 2019 Grand Committee

[Lord Adonis]

We are doing our job.

[Lord Foulkes of Cumnock]

I have never been addressed in that way before by a colleague, in 26 years in the House of Commons and now 13 in the House of Lords: by someone saying, “Sit down!” in a peremptory fashion. Perhaps if the noble Lord had said, “I am not prepared to give way at this moment”, we would have understood. I was rising to say that if this Minister had any degree of sensitivity at all, and if he had been watching what had been going on on the Floor of the House and in this Committee, he would have seen that we have on a number of occasions challenged these matters being taken together. I have done it myself on three or four occasions on the Floor of the House, and I have done it twice in this Committee. A number of other Members, including my noble friend Lord Adonis, have also raised the issue. If the Minister had been aware, he would have understood that. I have also mentioned it to our Chief Whip and to the noble Lord, Lord Taylor, the Government Chief Whip. If that has not been communicated to the noble Lord, Lord Henley, it is certainly not our fault.

Quality and Safety of Organs Intended for Transplantation (Amendment) (EU Exit) Regulations 2019

Debate between Lord Adonis and Lord Foulkes of Cumnock

Wednesday 9th January 2019 Grand Committee

[Lord Adonis]

Not content.

[Lord Foulkes of Cumnock]

Not content.

Human Fertilisation and Embryology (Amendment) (EU Exit) Regulations 2019

Debate between Lord Adonis and Lord Foulkes of Cumnock

Wednesday 9th January 2019 Grand Committee

[Baroness Manzoor]

My Lords, I understand the point the noble Lord is making, but I disagree with him. This is about contingency planning, and we will move forward in that way. It is right and proper that the Government do this, and any sensible Government would be planning for any eventuality.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Adonis]

Will the—

--- Later in debate ---

[Lord Foulkes of Cumnock]

I am really grateful to my noble friend, who has dealt with this precisely and with knowledge rather than the broad brush I was using. This shows what an advantage it is to have people such as him in the House and this Grand Committee. It would have been better if he could have dealt with it through primary legislation in a proper, considered way; then we could have dealt with it in Committee, amendments could have been tabled and we could have considered the most appropriate way of dealing with it.

[Lord Adonis]

My Lords, before my noble friend sits down, does he not also think it would be advantageous to the Grand Committee and the House for us to have a procedure whereby we could discuss amendments to these regulations rather than having to accept them in full or not at all? This is a big problem that we have been struggling with throughout the consideration of these regulations and our wider consideration of the EU withdrawal arrangements.

[Lord Foulkes of Cumnock]

I certainly do. I see that my noble friend Lord Tunnicliffe is present. He has much greater experience in the House of Lords than I do, and he reminds me that there is a danger in using what I think he called the nuclear option of moving against statutory instruments because of the implications. If we were able to consider amendments to them and amend them in some way, we would not have that worry; we would be able to deal with them in a more specific, detailed, thoughtful and effective way. This is a difficult issue. A lot of people have become increasingly concerned over the years—and I know that this is not just in the Labour Party; it stretches right across the parties to the Conservatives, the Liberal Democrats, the Greens and others—that more and more statutory instruments are just being pushed through, rather than those matters being dealt with in primary legislation.

--- Later in debate ---

[Lord Adonis]

My Lords, I will make some points about the validity of our consideration of this statutory instrument. Like the nine others we are going to consider, it relates to no-deal planning. In respect of the remarks made by the Deputy Chairman of Committees, this is highly relevant to this regulation and all the others because we would not be debating this regulation and all the arrangements that the Minister explained, including very complex new relationships that are going to be necessary with our European partners, if it were not for the fact that the Government are putting in place no-deal planning for what might happen if we crash out of the European Union on 29 March without a treaty.

But there is a big question mark about the validity of that no-deal planning, for two reasons. First, the supposition of all parliamentarians when we served the notice under Article 50 was that there would be a deal. The whole purpose of Article 50 is to set in train negotiations for an exit treaty. The House of Commons has never voted—until yesterday, and I will come to this in a moment because it has a big bearing on our consideration of these statutory instruments—on a proposition that the United Kingdom should leave the European Union with no deal; nor have your Lordships. It is my contention that the whole consideration of these statutory instruments is invalid because it does not follow a clear instruction from the House or any legislative basis for the implementation of no-deal arrangements.

[Lord Foulkes of Cumnock]

Perhaps my noble friend will speculate on the authority under which money has been spent preparing for no deal. I have raised this with Meg Hillier, chair of the Public Accounts Committee, who tells me that the National Audit Office is looking into this to report to the Public Accounts Committee. I just do not understand how millions and millions of pounds can be spent without any authority on something that is not government policy.

[Lord Adonis]

I agree entirely with my noble friend. Every time we debate these issues, the sum allocated by the Treasury for no-deal planning is increased. My noble friend and the Committee may have noticed that it has now been increased to £4 billion. Apparently £2 billion of that is still to be allocated. None of this, as far as I can see, follows instructions from the House of Commons or indeed information given to the House of Commons. The first question to ask the Minister in respect of these regulations is: can she tell the Grand Committee how much the preparatory work for these regulations, and all the consultation which the noble Baroness just referred to, is costing, and what the cost will be to the NHS of having to put in place all these new arrangements, including the new licensing provisions referred to in the regulations? A key issue for the House, when it debates these regulations after our consideration, will be to know what the cost is going to be and whether in fact this is a cost that we think it is reasonable for the public to be bearing.

But the situation seems even more serious. As of yesterday, the House of Commons has debated whether or not it wants no deal to proceed. It had a full debate yesterday evening on the amendment tabled by Nicky Morgan and Yvette Cooper on the specific question of whether or not funds under the Finance (No. 3) Bill, which was presented to your Lordships this afternoon, should be allocated in the event of no deal. There was a long and extremely heated debate on that issue. The House of Commons voted by 303 to 296—which is an extremely large Division, one of the largest there has been in the whole Brexit process—against the Government by a majority of seven in favour of the amendment which would severely limit the ability of the Government to use public funds for implementing a no-deal outcome without the specific authorisation of the House.

We are in an extraordinary constitutional position. We are being asked to approve extremely significant regulations involving us crashing out of the European Union with no deal, which, as my noble friend Lord Winston said, in the specific instance of human embryology and tissues, involves big burdens on the NHS, questions about how new arrangements will work and costs to public authorities. That is all being done on the basis of no specific statutory authorisation and against the clearly expressed will of the House of Commons that this should not proceed in any event. I will make the same remarks in respect of all these regulations, because they apply equally, but this is a big issue and this debate will influence the House when these regulations are referred to it.

Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Foulkes of Cumnock

Tuesday 18th December 2018 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the awful spectre of a no-deal Brexit grows relentlessly day by day. Like lemmings, the Government are heading blindly towards a cliff edge. There is paralysis in the House of Commons. The Prime Minister seems to be manoeuvring to get what she wants, irrespective of what is best for the country. I am pleased that we have this debate on the Floor of the House. That is why I negatived it in Grand Committee, when the Government were trying to slip it in quietly behind the scenes in the Room next door.

However, most of the talk about a no-deal Brexit is fairly abstract to most people. The implications have not been sufficiently discussed or understood. They are potentially quite disastrous and this is only one of them—we are not talking about the lorry parks, the medicines or all the other problems. This relates just to aviation. Whenever anyone tries to raise practical issues in this realistic way, they are shouted down with the usual cry from the Brexiteers of Project Fear. We saw that in Scotland in 2014. In fact, there is a great deal to be feared from no deal—and this, as I say, is just one example.

The basic question is whether planes will keep flying between the United Kingdom and European Union destinations, and elsewhere, after 29 March 2019—and, if so, on what terms and at what cost. We have already discussed this on two previous occasions. It is no reflection on the Minister personally that satisfactory answers have not yet been provided, because she cannot provide what does not exist. I will try again to see whether she can do her best—I know she will.

As I have pointed out previously, there is a straightforward way of resolving Brexit-related aviation issues, at least in the short to medium term, if we go ahead with no deal. Access to the EU’s internal market for air transport could be retained by the United Kingdom simply joining the European Common Aviation Area, which is not restricted to European Union member states. However—and it is a big “however”—membership would require the United Kingdom to accept EU aviation laws, which ultimately would come under the jurisdiction of the European Court of Justice. So what was seen by the Prime Minister as a red line has in fact become a straitjacket in which the Government have put themselves so that they are unable to take this sensible action.

Surely this is an example of where realism should triumph over dogma. Is there anyone in this House—or indeed the whole country—who would deny the common sense of accepting that one condition in return for the guarantee that, after 29 March, whatever else happens it would be business as usual for aviation—a very simple way forward?

Whatever you think of Michael O’Leary in other contexts, he certainly knows his industry and needs to be listened to, and his company provides cheap flights for millions of people in this country and others. He says that if there a no-deal Brexit, flights will be grounded. So can the Minister give an absolute guarantee now that this will not happen? I say this now and I will say it again: whatever she says will be recorded in Hansard and when it comes to 30 March, we will be able to see—if we go ahead with no deal, which I hope we do not.

[Lord Adonis (Lab)]

Is my noble friend aware of anyone in the aviation industry who thinks that Brexit is anything other than an extremely negative and potentially disastrous step forward for this country?

--- Later in debate ---

[Lord Adonis]

My Lords, I extend my commiserations to the Minister for having to defend an impossible policy today. Nobody engaged in this business thinks that what we are discussing today is anything other than ridiculous: dismantling our entire existing system of civil aviation regulation, mutual recognition and European supervision and the rights of carriers to operate in different countries, all for the pursuit of an ideologically crazed venture which never at any point focused on issues of aviation and travel within the European Union.

None the less, having extended my commiserations, I point out that the Minister does have great responsibilities to the House and to Parliament. As the noble Baroness, Lady Randerson, so rightly said, people are making real travel decisions based on their fear of what may or may not happen from the end of March next year. It is almost unbelievable that people should be cancelling their travel plans and not arranging holidays for next Easter and summer, due to their fears of what will happen because of inadequate government preparations for our relations with our European partners. In the House of Commons yesterday, the Prime Minister herself ramped up the real possibility of a no-deal Brexit in a big way and posited it as the main alternative to the passage of her deal. It is hard to exaggerate how irresponsible that was on her part, because almost nobody in Parliament believes that this deal is going to go through in a month’s time. The Prime Minister is saying to Parliament, and to the country, that the most likely scenario now facing the country is that there will be no deal at the end of next March.

All of the concerns raised in the reports we have been debating today, leading to profound discontinuities and companies and individuals in this country experiencing massive economic and social damage, will come to pass. At the moment, we are just talking about one small fraction of aviation, but we face an extremely serious situation. As the noble Baroness said, this is just one set of regulations. There is a string of regulations relating to the complex and difficult area of aviation safety which I hope will come to the Floor of the House because they involve extremely important issues. There are dozens of other transport regulations.

I am told—because I know one or two things about what goes on in the noble Baroness’s department—that a significant proportion of the staff in the Department for Transport are now working solely on Brexit-related issues. This is part of the reason for the massive cost overrun on Crossrail, which is not being delivered on time. We have inadequate supervision of HS2—we could continue down the list. There is only a certain amount of expertise, energy and capacity in Whitehall and at the moment, it is all being sucked in by Brexit, including the extremely valuable time of the noble Baroness and other Ministers in her department, which is having to be spent dealing with proposals for what happens if we crash out of the EU in three months’ time, rather than staying in. I suspect that the noble Baroness agrees with almost everything I have said, although she cannot say it quite like that. All this is worth saying because we are going to have this time after time, day after day, between now and the end of next March if we carry on with this present process.

My noble friend Lord Foulkes has done a great service to the House by bringing up this matter and moving his amendment. I was surprised when he said he was not going to push it to a vote. Indeed, I was little short of astonished, as my noble friend never knowingly undersells when it comes to fulfilling the duties of opposition. I cannot believe that, at this late hour, he is going to wimp out of pushing this to a vote. I hope he has not come under pressure from these people called Whips, who apparently exercise some influence in this House. I cannot think of any good reason for not pushing it, since the matters raised in his amendment are of profound public policy concern. I cannot think of an issue that this House has more of a duty to raise than this: it goes to the heart of the continuity of our transport arrangements. It may be that the noble Baroness gives such an impressive and detailed reply that my noble friend will not feel he needs to press this further. However, to give him some slight encouragement, if the reply is not of the calibre he would expect, giving give him absolute assurance of continuity in our transport arrangements at the end of next March, he might think of pressing the amendment. He might find that one or two other noble Lords will be with him in the Lobby. I might even be prepared to be a Teller with him.

It is not just about a vote at the end of this debate. We have got to send a message to the Government that we are on their case, regulation after regulation, when issues of this variety come before the House between now and the end of next March.

[Lord Foulkes of Cumnock]

As my noble friend said, there are going to be dozens, scores—maybe hundreds—more of these SIs. We need to keep a very close watch on them in Grand Committee and make sure that the important ones are negatived and come here. We may have many other opportunities for considering them, moving amendments and even voting. Even if he does not have the excitement today, I think there are going to be many other opportunities.

[Lord Adonis]

I entirely agree with my noble friend and with the noble Baroness, Lady McIntosh, who rightly said that issues of first-order public policy were being raised in regulations. At the moment, whether they come before the House is almost entirely random. I also say in passing that there is a growing sense of frustration about this. The House is about to go into Recess in what is—let us be frank—a national crisis. It is going into Recess on Thursday and not coming back until the second week in January. By then, we will have literally a matter of days before we leave the European Union. We should be doing our duty and assembling here in Westminster and debating these issues regulation by regulation from the beginning of the new year. I might have something further to say about that when the Motion for the Adjournment comes forward on Thursday.

Turning to the specific issues at stake here, the situation is very serious. The report of Sub-Committee A of the Secondary Legislation Scrutiny Committee, which examined the regulations and—I echo the Baroness—did an excellent job on these and others, says of air carriers that,

“in the event of ‘no deal’ the UK expects to grant permission to EU carriers to operate at UK airports”.

The noble Baroness, Lady Randerson, said that part of the reason why we have such a big aviation sector is cheap airlines. They are part of the reason, but it is also that in Heathrow, we have Europe’s preeminent hub airport. It is one of the biggest earners for this country in terms of international income and the promotion of inward investment, because it is so successful. Anything that promotes discontinuity in operations at Heathrow will be lethal to its success, to our ability to attract inward investment and to be an aviation world leader in future. If our European partners and other European airlines think that we are not going to put in place all the regulations necessary to ensure that Heathrow operates completely smoothly and with no discontinuity whatever, they will very rapidly—the noble Baroness is nodding because she understands this completely—move their operations to Frankfurt, Charles de Gaulle, Dubai or other international hub airports that are at least as accessible as Heathrow in terms of facilities. The stakes are extremely high: one of our major national industries could be at stake if we get this wrong.

The Select Committee said that,

“in the event of ‘no deal’ the UK expects to grant permission to EU carriers to operate at UK airports. We expect this to be reciprocated by EU states granting permission to UK air carriers to operate to points in the EU. If a multilateral agreement with the EU can’t be reached, we would seek bilateral agreements with individual states”.

Buried in those words are matters of huge complexity and difficulty. Not only would we need a bilateral arrangement for each of the 27 other member states of the EU in the event of no deal; as my noble friend Lord Foulkes said, there are also the other 144 arrangements that we have in place which govern our international aviation. When the Minister replied to the heated debates in Grand Committee on these issues and was invited to give an update on the state of the negotiations with our 27 EU partners on the reciprocal arrangements and the other countries that are covered by them, she was unable to give a great deal of information. She said that,

“we are having conversations with the Commission and the member states about a wide range of issues. I am not able to give further detailed information at this moment”.—[Official Report, 21/11/18; col. GC 21.]

Arrangement of Business

Debate between Lord Adonis and Lord Foulkes of Cumnock

Monday 10th December 2018 Lords Chamber

[Lord Adonis (Lab)]

My Lords, this is a complete farce. The Government are pulling the debate in the House of Commons on precisely the terms that we are supposed to be debating this afternoon. Is it not open to my noble friend the Leader of the Opposition to move the adjournment of the House, which I think would be the appropriate step in the circumstances, rather than us continuing with a farce that, as the noble Lord, Lord Newby, said, actually prevents those of us speaking in the debate later on today from learning what Her Majesty’s Government’s policy actually is? Surely we should adjourn this debate, not continue it in these farcical circumstances.

[Lord Foulkes of Cumnock (Lab)]

I am confused. I understood from what the noble Lord, Lord Newby, said that he was about to move the adjournment; that is what it sounded like. As my noble friend Lord Adonis said, either he or my noble friend Lady Smith should be in a position to move the adjournment of the House. It is entirely ridiculous that I am down to debate something that will no longer exist in a few hours’ time. I do not know how the Minister can do this.

[Baroness Smith of Basildon]

My Lords, I think the House would agree that we want to hear repeated in your Lordships’ House the Statement that the Prime Minister will make later, so I would not adjourn the House at this point. However, I urge the Government to reconsider their position. It is quite farcical for us to debate an issue that the House of Commons does not want to debate when its Members are the ones who have the meaningful vote.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Debate between Lord Adonis and Lord Foulkes of Cumnock

Committee: 2nd sitting (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Adonis]

But these incremental reforms are so minute that no member of the public outside will have the faintest idea that any of this is happening. The reform that they will notice is whether we fundamentally change this House to turn it from being a nominated House that has no democratic legitimacy into an elected House which has legitimacy. That is the reform that will make a difference that people will notice. All this other incremental reform that the noble Lord is talking about is so much stuff and nonsense. It will have zero impact in the way that the House is perceived externally, and nothing other than a tiny, marginal impact on the actual operation of the House internally.

However, in terms of the integrity of the Bill, because I know that my noble friend is keen for us to stay on message, in so far as there is any principle at stake in the Bill at all, I do not accept it because I do not think that it makes the House any more legitimate than it is at the moment. To have hereditary Peers is fundamentally illegitimate. As a nominated House, as it would become after the passage of my noble friend’s Bill, it does not even achieve my noble friend’s objective. I understood that his objective was, over time, to eliminate the hereditary Peers. Now we discover from the noble Lord’s amendment that two hereditary Peers will remain, so there will still be an hereditary component in this House, even after the labours of Hercules that my noble friend has engaged in over many recent months.

The nonsensical nature of this Bill—nonsensical if one believes in wider reform, which some of us do—is made even greater when one looks at the actual detailed provisions. It does not even achieve my noble friend’s objective of seeking to entrench in perpetuity a nominated House.

[Lord Foulkes of Cumnock]

My noble friend Lord Adonis has this completely wrong. I normally agree with him, fully. There is no contradiction between having incremental reform now, while there is a Conservative Government and working towards major reform. I support major reform by the Labour Party, which Labour’s candidates stood on at the last general—that is, a senate of the nations and regions and not a directly elected legislature, which would challenge the primacy of the House of Commons. There is no contradiction between incremental reform now, and then, when we eventually attain a Labour Government, making some major reforms.

[Lord Adonis]

My Lords, it is very important that we do not dissemble. I agree entirely with my noble friend, and actually I think that he and I would probably agree on the nature of a reformed second Chamber. However, it is important to understand that that is not the position of my noble friend Lord Grocott. He wants a nominated House in perpetuity and he will frankly accept that. He does not want this to be the first stage towards wider reforms; he wants to entrench a nominated House which has, in my judgment, no legitimacy whatever within a democratic constitution. He should be, and indeed he is, open about that.

I do not understand why it is, if that is what he is setting about, that those people who claim to be in favour of democratic reform—there are some in this House—are playing his game. His game is not to take a first step on the road to wider reform—rather, it is to stop any wider reform at all from taking place. We need to understand what my noble friend is up to. He is a very serious politician; he knows absolutely what his own game is, and we should not be playing that game.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Foulkes of Cumnock

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Adonis]

My Lords, I am not seeking to make party-political points in this debate; this issue is going to embrace us on all sides of the House. I note, though, that at the moment we still do not have proper arrangements in place for what is going to happen over the mayoralties in the great county of Yorkshire, which is a hugely important set of issues. There is massive disagreement taking place between different cities in Yorkshire and the Government about how this should be handled. At the moment we still do not have strong powers for any of the mayors outside London. The treatment of the counties of England that are not going to be embraced by the new city mayors is very problematic in the current arrangements, partly because it is genuinely problematic. We have never been able to resolve the issue about how you devolve to local government in England outside the major cities.

This is going to be a big ongoing source of debate, and rightly so. As these debates have demonstrated, we have done much better by Scotland and Wales in recent years, not least because they now have their own devolved Parliament and Assembly. We have done our very best to ensure consensual power-sharing government in Northern Ireland although, to our great regret, the Assembly is not sitting at the moment. Before long we are going to have to start giving equal attention to the government of England.

[Lord Foulkes of Cumnock]

I hope my noble friend Lord Adonis will forgive another Scottish voice, but I completely agree with every word that he has just said. Is not one of the ironies that our asymmetric devolution, which is the problem, is something that we could be tackling now with legislation in this Parliament if we were not preoccupied with this futile Bill and the other eight Bills that are going to follow it, which are totally unnecessary? We would have the time to deal with it.

[Lord Adonis]

I entirely agree with my noble friend; he is completely right. However, it is rather a sad commentary on our politics at the moment that we in this House need to be frank and accept that, but for Brexit, a lot of these issues would not have been flushed out. I do not think that, but for Brexit and the Brexit referendum, we would be addressing them.

At the moment, I am spending a lot of time travelling around the country, particularly to places which voted to leave. Most of these places are remote from London. There is an almost direct relationship between the distance from London, particularly the time it takes by train to get to places, and their likelihood of having voted to leave the European Union. What comes through so powerfully from the people I am meeting there is a massive sense of isolation and alienation not just from Brussels, although that is an issue, but from London and our Government and Parliament here. That is not a stable state of affairs for the future of government and democracy in this country, and it will have to be addressed.

[Lord Foulkes of Cumnock]

I completely agree. I feel so frustrated because for the past three years, I have been trying to persuade the leader of our party to consider a constitutional convention or to discuss the issue even within our party. I agree that we need to come back to that, but I turn to the amendment in the name of my noble friend Lord Wigley. I call him my noble friend because, especially on this Bill, we agree on so much. I am grateful to him for tabling it. Although it applies to Wales, as others have said, it could apply equally to England and Scotland.

As others have also said, I am pleased that it is the noble Lord, Lord Bourne, who will reply to the debate, because I have had dealings with him, as he will testify, on a number of occasions both before he was a Minister and since, and he looks at these things carefully, seriously and sympathetically. I expect that he will do the same again today.

I will not go through the whole list, but in Scotland we will lose structural funds, scientific grants and the Social Fund, and the Erasmus funding is in doubt. There is the European Investment Bank, which has funded roads, railways, hospitals and many other things. None of this can be continued when we leave—if we leave: the noble Baroness, Lady Humphreys, is absolutely right. I should always use the phrase “if we leave”, because it has not yet been finally decided, we are going through a process. It was the noble Lord, Lord Roberts, who said it, not the noble Baroness, Lady Humphreys. I am getting completely mixed up. As we go through the process, we are seeing more and more problems that will be created by Brexit.

I do not know whether any of your Lordships have visited the Falkirk Wheel, now one of the great tourist attractions in Scotland but also one of the great engineering attractions. Again, it was partly funded by the European Union. The Scottish Parliament estimates that more than 40,000 jobs have been created with European funding. As I said, I do not want to list them all—I could go on at length if that were appropriate, but I will not.

We have had vague promises that funding will be continued if we leave the European Union. We need, if not today then in the near future, more detail, more specifics. We need to know exactly what kind of funding there will be. Will each of the funds lost be replaced? What will replace the common agricultural policy? What will replace the regional development fund? What will replace the scientific grants? What will replace the Social Fund? It needs to be more specific. It is exactly like the immigration arrangements, which get put off, put off and put off. We have been promised them again and again but they have not been published. We do not even have a White Paper, let alone a Bill.

People need to know. If, as I hope, we will have a final say, if the British people will be given a final say, they will need to know whether these funds are to be replaced, how they are to be replaced and whether they will be replaced pound for pound, pound for euro, or whatever is appropriate. I hope the Minister will give such an assurance.

It is also ironic, as I said earlier when I was having an exchange with my noble friend, Lord Adonis, that we are wasting a lot of time in this debate.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Foulkes of Cumnock

Monday 19th March 2018 Lords Chamber

[Lord Adonis (Lab)]

My Lords, is the noble Lord aware that Baroness Thatcher’s last vote in the House of Commons made in February 1992 was in favour of a referendum on the Maastricht treaty? She was nothing if not inconsistent on these matters.

[Lord Foulkes of Cumnock]

My Lords, is it okay to speak now? I must apologise to the noble Lord, Lord Garel-Jones, for whom I have the greatest respect. I am glad that he got in to speak because if he had not, we would not have had the pearls of wisdom not only from him but from the noble Lord, Lord Patten, all of which I agree with. They have contributed greatly to our debate.

I shall speak to Amendment 357 and in support of the amendments tabled by the noble Lords, Lord Wigley and Lord Newby, which reflects if not all-party support, at least cross-party support. I apologise too for being a couple of minutes late for the start of the debate on this group of amendments, but I had not realised that the Bill is going through at breakneck speed today. Something has gone wrong. However, I am not sure that all of my colleagues would have minded if I had not made it at all because my party, or at least some in it, has not yet come around to supporting a new referendum; that is, not a second one, but a new one on the terms. I will make a rash prediction: they will eventually come around to supporting a new referendum because the vast majority of Labour members and supporters are in favour of one. If the leadership of my party is at all wise, it will come around to realising that it is not sensible to go against the views of the majority of our supporters.

Like other speakers and those who have intervened, I have never been a fan of referenda. It is right to point out that from time to time they have been used by dictators to advance their causes. People vote on other issues and they can be easily manipulated. We saw how this referendum was manipulated. It now appears that some things were happening from outside the United Kingdom that we did not even know about. But we did see people within the United Kingdom manipulating it. I will not go over what was on the side of the bus again or the other things that were said which have turned out to be—I will not use the word “lies”—pieces of misinformation given to the British people. If for no other reason than that, the British people should be given the opportunity to think again, although of course there are a lot of other reasons.

It was an advisory referendum. As I have said in the House before, what I find is the most astonishing, disturbing and upsetting thing is that normally intelligent, bright, clever and able people know that we are heading towards a disaster, yet they continue to say, “But we must move in that direction because, ‘The British people said so’”, thus ignoring the fact that it was an advisory referendum and all the other problems associated with it.

As I have said before, the franchise in Scotland for the Scottish referendum allowed 16 and 17-year olds—I will come back to that later—and European Union citizens to vote. The European Union referendum did not. Is it not crazy that European Union citizens were able to vote on the future of Scotland but not on the future of the United Kingdom in Europe?

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Foulkes of Cumnock

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Foulkes of Cumnock]

Indeed, and as I understand it, if I read the Evening Standard right, they are going to send a very strong message as far as London is concerned about what they think of this Government.

I conclude by saying that I wish I was learned as well as noble, like the noble and learned Lord, Lord Keen, because I would then be able to understand some of the detail rather more precisely.

[Lord Adonis]

Before my noble friend concludes, does he share my concern about what the Minister said about the difference between “consensus” and “agreement”? Does he agree that that is quite a significant statement on the part of the Government in the course of this debate? The only point in making the distinction, as I understand it, is that the Government do not regard themselves as fully committed to the terms of the “agreement” of last December.

--- Later in debate ---

[Lord Adonis]

The word “relevant” does not, in any normal meaning of the word, mean legally relevant, any more than the word “appropriate” means legally inappropriate.

[Lord Foulkes of Cumnock]

My Lords, can I make a confession before we go further? I cannot claim credit for the wording of this amendment. The credit must go to Michael Clancy of the Law Society of Scotland—that is why it is better than I would have done. The Law Society of Scotland says that,

“‘persuasive authority’ is a recognised aspect of the doctrine of stare decisis or precedent. Persuasive decisions are not technically binding but the courts can pay special attention to them”.

I mentioned the three courts earlier: the Judicial Committee of the Privy Council, the Court of Human Rights and the supreme courts of Commonwealth countries. It seems to me to be a very good amendment, but I do not want to take credit for it, as that must go to someone else.