European Union (Withdrawal) Bill

Lord Beith Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Brown of Cambridge (CB)]

My Lords, I support Amendment 28, tabled in the name of my noble friend Lord Krebs and the noble Baroness, Lady Jones of Whitchurch, and to which I have also added my name. My noble friend Lord Krebs has already described very eloquently the purpose of the amendment. During Committee in the other place, the then Minister of State for Courts and Justice described this clause in nice, simple, visual terms. I found them slightly easier than all the legal language that we have been dealing with. He called it a sort of broom: a sweeper provision that,

“picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act”.—[Official Report, Commons, 15/11/17; col. 498.]

Such a broom seems a jolly useful idea, but as it stands it is missing a few bristles.

My noble friend Lord Krebs mentioned the air quality directive. I believe that Clause 4, as it stands, could fail to sweep into UK law the requirement on the Government to review and adjust the airborne particulate PM2.5 targets in line with scientific information from the World Health Organization. The current clause could also fail to sweep, as he mentioned, details such as the aims and purposes of directives. For example, the environmental liability directive includes the really important principle of “the polluter pays”. I am not quite sure whether I am addressing the noble Baroness the Minister or the noble and learned Lord the Minister, but I would ask one of them to please let us have a broom with denser bristles.

[Lord Beith (LD)]

My Lords, Clause 4 contains many ambiguities, some of which have been helpfully pointed out by the noble Lord, Lord Krebs, and the noble Baroness, Lady Brown. The clause domesticates all directly effective treaty provisions whether or not they will be capable of meaningful application following exit. Several problems arise from that which the Government are aware of and say they will address. However, I am not entirely comfortable with the sort of formula the helpful Solicitor-General brought to the committee when he came to see us. He said:

“‘The Government will consider how these rights can be given effect to in the context of our exit from the EU on a case-by-case basis ahead of exit day’”.


There is an awful lot of work to be done before exit day and I look forward to receiving this case-by-case analysis at some point.

The Constitution Committee suggested amendments to deal with some of the ambiguities, but it could not deal with all of them for the reason we set out in paragraph 37. Reciprocal rights are,

“inextricably linked to the legal relationship between the UK and the EU post-exit. The full impact of Brexit upon reciprocal rights will not be known until the UK’s future relationship with the EU is determined. This highlights a broader issue that the uncertain environment in which the Bill is being considered makes it difficult fully to assess its likely consequences, including its constitutional implications, at the time of its passage”.

That is putting it gently, but that is the difficult situation in which we are operating.

I turn specifically to the effect of Amendment 26. I remain puzzled by not just the ambiguity but the conflicting language used in the clause. The noble Lord, Lord Pannick, elucidated this at the start of this short debate by citing the phrase,

“not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”.

The committee responded by saying:

“It is unclear whether this means that there must be a judgment on the specific provision of the particular directive, holding that it has direct effect, or whether it simply requires that the provision in question satisfies the criteria that would be applied if the matter were to be judicially considered”.


That is a pretty hypothetical basis on which to defend a right. We said:

“The language of clause 4 supports the latter interpretation, but the explanatory notes appear to endorse the former”.


A great deal of paper is being shuffled around at the moment because it may be that the ambiguity is being resolved as I speak, although I suspect that what is really being looked at is how far we can get tonight in the course of these proceedings. However, we need some help in getting the Government’s view on this, but that might not be sufficient because we also need to ensure that the Bill is tightened up in this respect.

[The Duke of Montrose (Con)]

My Lords, we have spent a lot of time today trying to define what is a snapshot and what could give clarity in the transposition of the legislation. We are now poking around as to where the fuzzy edges are, and some of this is very much more than just fuzzy edges. In fact, it is very good that the noble Lord, Lord Krebs, outlined areas that this measure would solidify and imply. My worry about Amendment 28 concerns subsection (3), which deals with law that,

“incorrectly or incompletely gives effect”.

It is hard to say what that will apply to. It is obviously drawn up that way because we do not know what it will apply to. In some ways, it seems we are now trying to include laws in the snapshot when we do not know what they are or what they might be.

My main gripe is that the amendment says that,

“a Minister of the Crown must make regulations for the purpose”.

This is one of the things for which we might say that a Minister of the Crown “may” make regulations, because we wish to leave some power to the UK Government to intervene to construct the type of law we would like to see.

--- Later in debate ---

[Baroness Goldie]

My Lords, this will be brief, because my soulmate and prop has deserted me. With this amendment, the noble Lord, Lord Pannick, has raised what he sees as the potential conflict between the EU law retained under Clause 4 and the domestic legislation preserved under Clause 2. His amendment seeks to ensure that rights, powers, obligations et cetera provided for in EU directives which have been implemented into EU-derived domestic law—and therefore are already subject to an enactment—will not need to have their directly effective provisions domesticated through Clause 4.

The Government consider this amendment unnecessary. To the extent that there is any potential overlap between Clause 4 and Clause 2, this is no different from the situation at present in relation to EU law and how we see it given effect in UK law. A judgment may establish direct effect, and domestic legislation to implement that finding may follow. But this does not cause any practical difficulties now—indeed one process complements the other—so we simply do not agree that there will be practical difficulties under this Bill as phrased.

I am of course grateful for the suggestion made by the noble Lord, Lord Pannick, but the Bill’s position is clear and consistent with existing practice, and his amendment is unnecessary. In these circumstances, I ask him to withdraw it.

[Lord Beith]

The noble Baroness is bringing out an explanation which the committee has already considered and was not satisfied by. As the noble Lord, Lord Pannick, explained, there is a remaining ambiguity. Can I suggest to her that she composes a note to her very good friend, the noble and learned Lord, Lord Keen of Elie, saying she was given a very difficult time over this and that the Government really have to look at it again? If she is agreeable to doing that, we will not spend much time making a fuss about it.

[Baroness Goldie]

I thank the noble Lord very much indeed. I am sure my noble and learned friend Lord Keen does not even need the note. He will know that I have had a very difficult time.

European Union (Withdrawal) Bill

Lord Beith Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Hague of Richmond. Although I do not agree with the picture he painted of the multiple referendum scenario, I am inclined to think that we would all be better off if the Prime Minister had persuaded him to return to the Foreign Office.

[Noble Lords]

Hear, hear!

[Lord Beith]

The purpose of this Bill is to provide the legal mechanism to ensure that if we leave the European Union, we do so without leaving a huge hole in our law. However, we are having to consider it when we have no idea of what our future relationship with the rest of Europe will be and we have a Cabinet that cannot agree on what that relationship should be. Moreover, the Bill as drafted is incapable of carrying out its purpose without leaving a mess of legal uncertainty for the courts to sort out, without giving sweeping powers to Ministers, without undermining the sovereignty of Parliament and without undermining the devolution settlement, the Good Friday agreement and the future integrity of the United Kingdom. All that is in addition to the damage that Brexit will do to the UK economy and to European common endeavour on issues such as security, judicial co-operation and the environment. That is also in addition to the damage that leaving the customs union and the single market will do to my own region, the north-east of England, with its strengths in the motor industry, train building, pharmaceuticals, agriculture and its universities.

As this process staggers on, the demand for the eventual terms to be put to the British people will grow. In the meantime, however, let us get the Bill right; let us try to make sure that it does not further embed undemocratic practices, ambiguous laws and overcentralised government.

My priorities for the task are those of the Constitution Committee, on which I have the honour to serve in the company of some of the most expert and diligent Members of this House. There is a very convenient set of potted biographies of us all in Monday’s Daily Mail, in which we are named not as “enemies of the people” but as “The peers trying to slam the brakes on Brexit”. In this task, however, that is not what we are doing: we are trying to fix the steering and get the Bill through its MOT test.

We should first be getting the task of the courts manageable and the sovereignty of Parliament clearer by treating retained European law as primary legislation. Why a Brexit Government want to confuse the issue by retaining the concept of the supremacy of EU law in the Bill puzzles me.

Secondly, we must secure effective parliamentary control over the mass of delegated legislation which will flow from this Bill, by more narrowly defining its scope and by giving the House the power to determine, not merely to advise on, what level of scrutiny it requires. This is not just about Henry VIII powers. It extends to other statutory instruments, which can, for instance, set up new public bodies. Such an instrument would not be open to amendment, so the House could be presented with a new health or environment regulator and be unable to insist that it was more independent or had a better defined remit.

My third objective is to see that Clause 11 is amended so that it conforms to the devolution settlement. As drafted, the Bill allows the UK Government to hold on to powers which should be passing directly to the devolved Governments. There may indeed be a need for common frameworks in some fields, but as it stands these would not be discussed on an equal basis. UK Ministers could say, “We will devolve the powers, but only if you accept our view on what the common framework should include”. The power of UK Ministers to change the content of legislation previously enacted by devolved Parliaments is an offence against the principles of devolution. I have no idea why Ministers have not so far delivered on their promise to amend this clause, but we need to see whether what they propose is adequate and whether they have got the message that this House has delivered loud and clear.

Finally, I remain puzzled—or should I say mistrustful —about the position of Brexit hardliners. They say that they want to bring power back to this Parliament—this sovereign Parliament. This sovereign Parliament, however, is entitled to insist that Brexit, if it happens, does not become an accretion of power by Ministers without adequate parliamentary control. Furthermore, this sovereign Parliament is entitled, if it chooses, to insist that if we do leave the European Union we nevertheless seek to remain in the customs union and the single market, for the sake of British business and British jobs. Moreover, this sovereign Parliament, once the terms of any British exit are known and the reality of it becomes clear, is entitled—if it wants to—to seek the opinion of the British people as to whether this is what they want.

EU Exit Negotiations

Lord Beith Excerpts

Monday 13th November 2017 Lords Chamber

[Lord Callanan]

We have been very open that we do not want to copy any existing agreement. We want a bespoke, made-to-measure agreement that is suitable for both ourselves and the EU, because free trade benefits both sides. We think that an agreement is achievable. If both sides show commitment and willingness, we can work towards it and we should be able to achieve it.

[Lord Beith (LD)]

My Lords, how many delegated powers, and indeed clauses, will now be removed from the existing withdrawal Bill to satisfy the indication given today that powers which should be in primary legislation will be in primary legislation under the Government’s revised approach?

[Lord Callanan]

I am sure there will be lots of discussions and negotiations on all the clauses in the withdrawal Bill in the other place, and I am sure that we might have one or two suggestions to make in this House also.

European Union: Final Withdrawal Agreement

Lord Beith Excerpts

Thursday 26th October 2017 Lords Chamber

[Lord Dykes (CB)]

My Lords, does the Minister agree that her answers are a bit too long and do not allow enough people to get in on these occasions, which are very important? Was she impressed two days ago with the interesting comments of Mayor Bloomberg—a very successful international businessman and ex-mayor of New York—that the decision of the Government to leave the European Union was as stupid as Donald Trump, the President of the United States?

[Noble Lords]

Too long!

[Lord Dykes]

Will she now ask her colleagues to think again about these matters, as the Government become more and more of a laughing stock, and decide what to do in the real interests of this country?

Brexit: Legislating for the United Kingdom’s Withdrawal from the European Union

Lord Beith Excerpts

Thursday 30th March 2017 Lords Chamber

[Lord Bridges of Headley]

My Lords, for fear of frustrating noble Lords, I will not repeat all the arguments regarding the noble Lord’s second point. I will simply say with regard to all these points that there will be ample opportunity, as I have said many times at this Dispatch Box, for your Lordships and the other place to scrutinise how the negotiations are proceeding. In addition, as we make it clear here and as we said before, there will be a vote in both Houses on the agreement at the end of the process, and were measures to come out of the withdrawal treaty that needed to be implemented, again, there would be a chance for Parliament to scrutinise those.

[Lord Beith (LD)]

My Lords, the White Paper referred extensively to the report of the Constitution Committee but not to its recommendation that both Houses need a mechanism for deciding whether enhanced scrutiny is required for some of these instruments. Given that statutory instruments cannot be amended and may be wrong in part but not as a whole, and that this House is reluctant to vote them down if they have been passed in the other House, surely we need that kind of mechanism.

[Lord Bridges of Headley]

My Lords, the noble Lord makes a valid point. I have read that excellent report, which makes a very useful contribution to the debate. I will not start committing one way now; indeed, it is not my role to start committing on the precise point the noble Lord made. However, I have had private conversations with some of your Lordships about this, whom I thank, and I am happy to meet the noble Lord to discuss this. However, I will not make a commitment on his point right here and now.

European Union (Notification of Withdrawal) Bill

Lord Beith Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 27th February 2017 Lords Chamber

[Baroness Hayter of Kentish Town]

I wish that my noble friend Lord Mandelson was right on that. If it were the case, we might be in a different position but at the moment it is a hope rather than a guarantee.

When I worked in the European Parliament, as any noble Lords who may have been in the Commons at the time might remember, we saved 1000cc motorcycles. We also saved kippers and Scottish Arbroath smokies. As noble Lords may remember, on the 1000cc motorcycles we had those wonderful big bikes going round and round Parliament Square before they headed off to Brussels. I think it was Commissioner Bangemann who had tried to ban 1000cc bikes. Of course, other than in the States they were made only in Britain. Elsewhere they made smaller ones and they came up with this argument that the larger ones were inherently unsafe. Actually, it turned out that they were safer than small bikes, partly because they are ridden by safer riders. Unfortunately, we won not because of the great display of bikes going round Parliament Square but because we had a Minister at the Council of Ministers as well as MEPs. He is not in his place but I think my noble friend Lord Tomlinson was probably the MEP concerned at the time. So we were able to challenge that argument and we won.

It was similar with the smokies, on a smaller issue. Some bright spark in the Commission thought they should be transported only below a certain temperature. Of course, they can be sent by post—in those days, we used to get them early enough for our breakfast. We managed to save those, too, but we did it because we had MEPs in the European Parliament, we had a Commissioner and we obviously had a Minister at the Council of Ministers.

What worries me—and, indeed, what worries me about the intervention just made—is that we would become rather like what we saw a lot there, namely lobbyists around the corridors of Brussels, using others to make the arguments for us. Norway said to us, “We use our Scandinavian friends; we have a very close relationship, for obvious reasons, and they make our representations for us”.

The other issue, of course, that we are all beginning to see, relates to the regulations. These are the regulations that your Lordships’ House will soon have to put into the great repeal Bill. These have all been passed by the European Parliament and the Council of Ministers, in both of which we are represented as a member of the EU. Once we put those into the great repeal Bill, others will continue to be made. In the short term, there will be no problem, and in the transitional period, membership of the EEA is extremely attractive because it will take a long time before those are replaced. Certainly, if we remain in the customs union, which I very much hope we will be able to do, we will have to abide by rules, even if we have not made them, on those elements with which we trade and by which we export. That, however, is different from being bound by the whole acquis and judged by the ECJ, with no British member, on rules that we have not made, in a Parliament in which we have no seats and in a Council in which we have no vote. That is not what the referendum said.

Therefore, my heart is with the movers of the amendment and with wanting to stay as we were, but I also have time, occasionally, to read books. I am a great fan of Lampedusa’s The Leopard, with its famous advice:

“Everything needs to change, so everything can stay the same”.


Alternatively, in some translations—Italian speakers will know better than I—he says:

“If we want things to stay as they are, things will have to change”.


I want things to stay as they are, in that we should continue to trade freely with the EU 27, but to achieve this, we will have to change, and negotiate tariff-free, encumbrance-free access to that single market and it to us. That is what we must aim for. We have a fight ahead of us to keep our position in the customs union, to ensure that tariff-free trade and to work for the three objectives that have just been set out by my noble friend Lord Mandelson and the closest possible relationship with the EU 27. Our task is to persuade the Government that they have set their sat-nav for the wrong destination. That is where our energies must go. However, it is unfair to give people the unrealistic hope that staying in the single market, despite the referendum and our exit, is a possibility. We need to continue to trade as freely as possible with the EU that we have to leave. For that reason, we are not able to support this amendment.

[Noble Lords]

Shame!

[Lord Bridges of Headley]

I think that I would like to say a few words, despite what the noble Lord, Lord Mandelson, says. I sense there is some division. Let me start by trying to mend some bridges—pardon the pun. All of us in this House wish our country to prosper. We all want to see more investment and more jobs. The very simple question raised by these amendments is this: in light of the vote to leave the EU, how can we best do that? I know that the noble Lords, Lord Hain and Lord Monks, and other noble Lords whose names are on these amendments, have long-held views that the best route to achieve that aim is, at least in part, for the United Kingdom to remain within the EU and within the single market. I respect their views and the steadfastness with which they hold them. I will try my best to be eloquent, but I am sure that what I am about to say will not deflect them and a number of other noble Lords, such as the noble Lord, Lord Mandelson, from supporting this amendment. But I will briefly set out why the Government oppose the amendment. The first and most obvious reason is that it has nothing to do with the Bill. The Bill has one purpose only: to enable the Government to start the process of negotiation. It is not a means to dictate the terms of the negotiation.

The second reason concerns the democratic arguments. Very briefly, as I said earlier, the Government promised to hold a referendum and to honour its result. Yes, I know that the Conservative Government said that they would protect our role in the single market in the manifesto. But as my noble friend Lord Blencathra pointed out, the manifesto also promised to respect the result of the referendum—a promise which this Parliament endorsed by passing the European Union Referendum Act.

As the noble Baroness, Lady Hayter, said, the debate we have heard tonight has been a rerun of the referendum campaign. As I said earlier, during that campaign, every household was sent a leaflet which spelled out the consequences of leaving as regards our membership of the single market. A number of people on both sides of the argument pointed out that we could not vote to leave and then try to remain in the single market. Criticising the leave campaign, one of those arguing to remain said:

“Some of those advocating British withdrawal suggest that we can have our cake and eat it by staying within the European single market to retain the great bulk of our trade which is with EU countries”.—[Official Report, 2/3/16; col. 855.]


Those are the words of the noble Lord, Lord Hain, and he was quite right. The four freedoms are seen by many across Europe as indivisible, and we should respect those views.

Much more than that, as other noble Lords have said, remaining a member of the single market would mean complying with the EU’s rules and regulations that implement the four freedoms, without having a vote on what those rules and regulations are. It would almost certainly mean accepting a role for the Court of Justice of the European Union. It would mean still not having control over immigration—relying on enforcement powers rather than creating an immigration system, which this Government intend to build, which allows us to control numbers and encourages the brightest and best to come to this country.

As to the customs union, were we to remain a full member, we would remain bound by a common external tariff, which would greatly limit our ability to strike our own trade deals and our freedom to determine the level of UK tariffs. Were we to remain within the common commercial policy, we would not be able to pursue freely our bold, ambitious trade agenda with the rest of the world. We would instead, as now, be ceding responsibility for this to the European Union. So to remain a member of the single market and to remain a full member of the customs union would, to all intents and purposes, mean not leaving the EU at all.

As to the EEA, I agree with the noble Baroness, Lady Hayter, that it suffers from a democratic deficit. Once we leave the EU, as my noble and learned friend said earlier, the EEA agreement will no longer be relevant for the UK. It will have no practical effect. But we expect a phased process of implementation to cover our withdrawal from the EU in which both Britain and the EU institutions and member states prepare for the new arrangements between us. This is intended to give businesses enough time to plan and prepare for the new arrangements. The interim arrangements that we rely on will be a matter for negotiation.

A New Partnership with the EU

Lord Beith Excerpts

Tuesday 17th January 2017 Lords Chamber

[Lord Bridges of Headley]

Up until the final bit, I think that my noble friend was carrying the House. I absolutely agree that there are potential opportunities before us. We have an extremely strong base on which to build. Many of our universities are truly world class. As I said earlier, I have had the opportunity to talk to a number of vice-chancellors and, being completely candid, a number of them raised issues such as immigration as regards both students and the ability to attract and retain academic staff. As I mentioned in the Statement, we are very mindful of those points. On what my noble friend said about the precautionary principle, he is obviously entitled to his views. Given the response of other noble Lords to that, I say that this can now be a matter for this House and this Parliament to consider and debate, and control the future of our regulatory system in the years to come. That is what delivering on Brexit is all about.

[Lord Beith (LD)]

My Lords, it was announced before Christmas that the Mayor of London, Sadiq Khan, would have a monthly meeting with the Brexit Secretary so that the views of London would be known throughout this process. What arrangements has he made for the north-east of England, 58% of whose exports go into the European Union and which has a positive balance of trade, to have its views heard in this process?

[Lord Bridges of Headley]

The noble Lord makes a good point. My ministerial colleagues and I—and Ministers right across government—have been travelling to meet representatives of business throughout the United Kingdom. But if the noble Lord has a group of people he would like me to meet, my door is open.

Article 50 (Constitution Committee Report)

Lord Beith Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, the Constitution Committee, under the wise leadership of the noble Lord, Lord Lang of Monkton, gave the Government some helpful advice. I do not really understand why the Government did not take the advice—I fail to see why they did not go ahead and seek parliamentary approval to invoke Article 50. The appeal to the Supreme Court is pointless, unless the Government’s wish is in some way to re-establish the primacy of Crown prerogative, even when to do so would enable them to overturn statutes by executive action. That leads me to fear that, in relation to both Article 50 and the Brexit negotiations, the Government’s wish is to minimise parliamentary involvement. Warm words have not allayed my suspicions, which are based on the positions that the Government have taken so far.

The Constitution Committee’s clear view is that invoking Article 50, assuming it to be irreversible, requires parliamentary approval as a matter of constitutional propriety and practical utility. Of course the Government may want to go to the European Court of Justice and demonstrate that it is possible to revoke Article 50, but Sir Humphrey would regard that as a courageous course for a series of reasons that I will not go into.

As the noble Lord, Lord Boswell, pointed out, there are four distinct stages to this process and Parliament needs to be involved in all of them. In practice, it is naive to imagine otherwise. As his committee points out:

“Too much is at stake for the Government to seek to limit parliamentary scrutiny to establishing accountability after the fact”.

I describe the stages slightly differently. The first one is Article 50 and the negotiating stance on which the Government seek to invoke it. The second is the process of negotiation. The third is approving an agreement and deciding whether the British people should be given an opportunity to accept or reject that agreement, while the fourth is implementation, which of course is completely impossible without Parliament. I shall make two points about two of these stages.

First, it is completely unrealistic for Ministers to suppose that the negotiation stage will be conducted in secrecy. The negotiations will involve the Commission, the European Parliament and 27 national Governments in addition to ourselves. They will leak, if not like a sieve at least as much as my old watering can; and in any case, as the European Union Committee has pointed out, the European Parliament will have access to all documents and can require formal responses to its recommendations. As the EU Committee argues, this Parliament must have at least the same level of access. There has been some indication that the Secretary of State has accepted this principle, but he is only one of a triumvirate, and who knows what the other members of it will think. They will probably tell us quite soon.

Sometimes it will be to the advantage of our Government’s negotiators if they are seen to be under pressure from the UK Parliament on a point they are being pressed to concede, but there will be a stream of informed and sometimes biased speculation coming out of the process that will give rise to debate and questioning here in this Parliament. Of course the outcome of the negotiations will have a profound effect on the livelihoods of millions of our citizens, so these things must be debated.

My final point concerns a very serious fear. If the Government are intent on limiting the role of Parliament at all stages of this process, those who thought that they were bringing power back to the British democratic system will find that they have been cheated. If the vast corpus of European legislation comprising tens of thousands of regulations, directives and legal judgments extending into most corners of public policy and private rights is to be migrated into UK law by a single Act followed by a mass of secondary legislation, it will be a disaster. Secondary legislation which has not gone through a proper amendment process in both Houses will necessarily be littered with defects—we know that from experience. It is also wrong in principle that rights should be taken away or amended by such a process. The people who voted to bring back UK parliamentary sovereignty will find that they have created executive supremacy over laws they thought they would gain the ability to change. It could be the biggest transfer of power from Parliament to the Crown since the Civil War. Not for the first time the attractions of a revolution against the established order, even one achieved in a democratic referendum, will fade when the revolution ushers in a regime that is more authoritarian than that which it replaced, and one less able to deliver prosperity and security.