Brexit: Withdrawal Agreement and Political Declaration

Lord Bew Excerpts

Wednesday 5th December 2018 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to address the vexing Northern Irish backstop issue. I should perhaps first say that I entirely accept the Government’s good-faith desire to deal with the difficulties created for the Irish Republic by Brexit—in particular, their desire to avoid a hard border in Ireland.

The Government indicated before last Christmas that there are no circumstances in which they would create anything that might be described as a hard border in Ireland—none at all. There are no circumstances even now, including a no-deal Brexit. We have greatly exercised ourselves, not so much to prevent a hard border on our side but to ensure that the EU will not tell the Irish Government, “You must establish a border on your side”. Maybe we were right to do it, but we should be absolutely clear that that is what we have been doing. We have put ourselves through a lot of pain to do it, and I absolutely accept it is right to be sensitive to the needs and problems created for Ireland by Brexit.

We ought to be clear about exactly what we have done and why, and not talk in too general terms. Even the noble Baroness the Leader of the House this morning made another, more generalised statement that this is being done to save the Good Friday agreement. She knows my admiration for her, and I have spent significant time with her. Having grown up in Northern Ireland, I know her understanding of and sympathy for Northern Irish issues. But there is one great problem with the backstop: it does not protect the Good Friday agreement. The reason is twofold. First, if people do not have democratic control upwards—the Matthews European Court of Human Rights case raised this issue in the context of Gibraltar in 1999—you have a problem. I turned to the Attorney-General’s advice this morning to read if there was any reference to the Matthews case, which clearly bears on the situation envisaged in the backstop. There is no such reference.

The Good Friday agreement is profoundly based on a bottom-up approach to north/south regulatory arrangements, not a top-down approach. The backstop is a top-down imposition on how Northern Ireland matters will be handled in future. There is a huge gap between the Good Friday agreement and the backstop; there is no avoiding it. I was myself much involved in the period between 1993 and 1998 in the struggle for the Good Friday agreement, and I spent much ink writing newspaper articles to convince the unionist community that you could have a north/south arrangement that did not automatically drag you into the orbit of the Irish Republic—that there were areas in which you could co-operate pragmatically, and that this would work. The great achievement of the Good Friday agreement since 1998 has been that these areas have grown without controversy; they have created little tension, and what tension we have had is all to do with other issues such as decommissioning and the implementation of the Good Friday agreement. It is quite remarkable how successful this has been. The objective was to end the cold war between the north and the south and we did so, but that is not the model in the backstop. It is absolutely clear that the model of the Good Friday agreement is not the model in the backstop.

We could look at this another way and talk about the disappearance of paragraph 50 from the text of the December agreement. The Prime Minister, even after Salzburg, explicitly referred to her support for paragraph 50, which places the Northern Ireland Assembly at the centre of north/south regulatory developments and the relationship with the EU. But it is not in the final version of the report. You could say that there is a category problem here: that EU law is dealing in a clunky way with nation states, that it has difficulty dealing with the subtleties of political agreements in Northern Ireland and so on, and that the language is creating a problem. You could say that the many references in the document to defending the Good Friday agreement in all its parts must mean that people understand that at its centre, the agreement say that, on issues such as north/south regulatory alignment and harmonisation, you must have “the specific endorsement of the Northern Ireland Assembly”. You could say that they know all that is there, and that is what they mean by supporting all aspects of the Good Friday agreement. You could say that they have read paragraph 17 of the Good Friday agreement, which says explicitly on the matter of EU issues that the Northern Ireland Assembly must play the key role in determining how this develops. You could say it—unless you have read what the backstop on agriculture actually says.

Article 10 of the backstop provides that the EU law on agriculture and environment should apply in full in Northern Ireland and that to enforce EU law, neither the UK Government nor the Northern Irish Government are allowed to carry out checks on farming in Northern Ireland. That is precisely the area, by the way, where the agreement has worked so well up to now—protecting animal health on the island of Ireland. It was one of the models, and it has worked like a dream. Now, however, the British Government are explicitly not allowed to carry out checks if there could be an animal disease such as mad cow disease on a farm in Ballymena, for example, and nor can the Northern Irish Government. That is how the agreement is interpreted in Northern Ireland. The language is absolutely explicit: it is repeated at page 429 of the withdrawal agreement and in two or three other places. Why it is there, I have no particular idea.

To be honest, the hope is that the EU does not care too much about this point, but it is a sign that we are getting very close to infringing the basic principles of the agreement. You can defend this on lots of grounds, some of which I absolutely accept, but you cannot defend it on the grounds that it is defending the Good Friday agreement. It is constructed on an entirely different principle: top-down, not bottom-up. This is a huge difficulty that will have to be attended to; otherwise, we lose the template of the Good Friday agreement, which all parties in Northern Ireland accept. Even now, when we cannot make it work, everybody accepts that that is the basic template for a settlement. If we throw it away, which will be the effect of going along these lines, we will be taking a massive risk with the stability of Northern Ireland.

I read the Attorney-General’s legal advice this morning in the hope that some of these issues would be addressed. It is extremely interesting legal advice but nothing is said about the implications of the 1999 Matthews case—the Gibraltar case—which raises these issues. Nothing is said about the obvious conflict between the core principles of the agreement—the text of the agreement—and the principles in the withdrawal agreement on the backstop. I really hope that the Minister, when he concludes, can give me clarification and reassurance on this matter, but on the face of it, there is a conflict.

Working Group on Independent Complaints and Grievance Policy

Lord Bew Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Bew (CB)]

My Lords, I thank the Leader of the House for repeating the Statement. I immediately declare an interest as chairman of the Committee on Standards in Public Life. Following our meeting this morning, our committee has already issued a warm statement of support for this document. There is a laconic reference in the Statement to “challenging discussions”. I indeed attended one such discussion chaired by the Leader of the House of Commons, Andrea Leadsom. I offer my personal congratulations to her. On 21 December, she made a Statement and then everything seemed to get stuck for quite a time. It is now unstuck; we now have real progress. I add to that my congratulations to all the other parties in the House of Commons, who after a vigorous debate have contributed to this agreement. The Speaker in the other place was quite right that there was no possibility of any real progress on this matter unless there was cross-party agreement. Yesterday afternoon, that finally materialised.

The great thing about this document is that it echoes the best practice of the best employers outside the House, which is what is so important about it. It is also important in that it strengthens the role of the parliamentary commissioner. I suspect it needs to be strengthened in other ways as well, but it could be seen as an important moment in that process.

Perhaps I may set out one final proviso, for which the committee has expressed support—points in that regard have already been made by the noble Lord, Lord Newby. I hope the noble Baroness accepts that much will continue to depend on the leadership culture in the House. These proposals are excellent, but they will depend on a continued transformation of the leadership culture in both Houses.

[Baroness Evans of Bowes Park]

I thank the noble Lord for his comments and for his evidence to the committee. I am sure we will work closely with his committee as we move this work forward. He is absolutely right about the need for leadership, which is why I hope, and am sure, that our House commission will play a role in helping to make sure we can oversee these changes. It is partly why the working group will become a steering group: to make sure that we see the rapid progress that the noble Baroness was talking about and that we continue to provide leadership and representation across both Houses to get these processes in place.

English Votes for English Laws

Lord Bew Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Bew (CB)]

My Lords, in 1997, Tom Nairn published a book called The Break-up of Britain, which hugely influenced my generation of academics. It has not broken up. One reason is that the economic facts of life have favoured the union, but the other reason is the existence of an effective imagined community in the devolved regions of the United Kingdom, still in favour of the United Kingdom. I agree with much of what has been said about the constitutional difficulties of this moment. I gave evidence to the McKay commission and I have a small flame in my heart for the gentle tweak that he offers.

The Government are right that the status quo is sustainable. I absolutely accept the sincerity of the Government’s belief in and support for the United Kingdom—I have no doubt about that—but the battle is beginning to be lost among young people in favour of that imagined community. The key point here is the Government’s mode of address, and how one best sustains the imagined community, which still exists for the United Kingdom. We cannot assume that that effective imagined community is going to persist, and the style of current debate in many respects is corrosive.

Parliamentary Privilege

Lord Bew Excerpts

Thursday 20th March 2014 Lords Chamber

[Lord Bew (CB)]

My Lords, like the noble Baroness, Lady Healy, I very much thank the noble Lord, Lord Brabazon, for the skilful way in which he chaired our Joint Committee. We have in this report shied away somewhat from the concept of comprehensive codification of parliamentary privilege. We thought long and hard about many of these questions, and we were right to do so.

None the less, in the remarks that I make today I will focus on those areas in which we advocate legislative change. In some ways we follow quite closely, as it were, arguments that were advanced in 1999 by the noble and leaned Lord, Lord Nicholls of Birkenhead, in the report of that year. I notice that the noble Lord, Lord Cormack, is in his place. As a Member in the other place, he sat on that committee. There were at least two very important aspects of that report which have seen no action in intervening years; our committee was disturbed by the failure to take action. I refer in particular to the repeal of Section 13 of the Defamation Act 1996.

The problems of and raison d’être of Section 13 arose out of a very particular, unique and, one might almost say, slightly bizarre case of the struggle between Neil Hamilton and the Guardian newspaper at that time, at a particularly difficult moment in parliamentary history and of the Major Government. There is a fundamental problem with the law as it currently stands, which the noble Lord, Lord Brabazon, touched on at the beginning of his remarks. Privilege is not an attribute of an individual Member; it is an attribute of the House itself. The law as it stands is compatible with the view with which I think that both Houses are uncomfortable—that it is in some sense the attribute of the individual Member. There is a strong case for us looking again along the lines of the report by the noble and learned Lord, Lord Nicholls, on this question. There is really no more fundamental misunderstanding in the public mind about parliamentary privilege as that it is a claim by individuals to some form of entitlement. That is not the view of Members of Parliament, but we none the less have the unfortunate legacy of this case. I feel very strongly that this should, if at all possible, be corrected.

There is another respect, too, in which we have followed in a significant degree the report of the noble and learned Lord, Lord Nicholls. Page 94 of the report says:

“The Joint Committee considers the protection given to the media by the 1840 Act and the common law itself should be retained. We consider, further, that the statutory protection would be more transparent and accessible if it were included in a modern statute, whose language … would be easier to understand than the 1840 Act. We recommend that the 1840 Act, as amended, should be replaced with a modern statute”.

Again, that is a recommendation of our committee.

It is clear from the Government’s response that they are not yet convinced that there are significant difficulties facing the media in reporting Parliament. However, on the basis of the evidence that we heard, I find that difficult to comprehend. It is to do partly with the speed at which the media need to respond to things that are said in Parliament. It is clear that in the context of how we have moved in a number of important ways in terms of the recently passed Defamation Act to improve freedom of expression and equality of expression in public debate in this country, it would be ridiculous to leave this as an anomaly.

There is, oddly, a similarity between the 1840 Act and the provisions that arose in the Defamation Act out of the Hamilton case. In both cases, the immediate backdrop in the public debate is bizarre and eccentric. There is something to be said for the 1840 Act; it is important not to throw out the baby with the bathwater—it has given the media certain protection. With any change that occurs, we should be concerned not to throw the baby out with the bathwater. None the less, it is very hard, in both cases, when the circumstances of the legislation are so peculiar, individualistic and bizarre, to argue that there is some case for maintaining in statute language that in both cases is inappropriate—particularly in the case of where privilege resides, where it is fundamentally misleading to the public.

I conclude by taking a slightly different angle of approach to another aspect of our report, while declaring an interest as chair of the Committee on Standards in Public Life. I have to declare that interest because that committee has addressed this area—the appointment of lay members to Select Committees, which is dealt with in chapter 4 of our report. Since 2002, the committee has been pushing for this sort of development of Parliament, with independent or external elements in its system of regulation. In this context, the Committee on Standards in Public Life has welcomed the addition of lay members of the committee as a further independent element of the House system of regulation. In the end, we have decided, after receiving very compelling evidence from the clerks, that there is no case here as such for legislation. However, I do not want it to be thought that the committee, while I think rightly accepting the very cogently argued evidence that we received on this point, did not also pay a great deal of attention and give respect to the letter that the noble Lord, Lord Brabazon, received from the right honourable Kevin Barron MP, the chairman of the Standards and Privileges Committee, who wrote to our chairman to support legislation granting lay members of the CSPL full voting rights, saying:

“I cannot overstate how important it is that lay members should be able to participate on the same basis that MPs do”.

Our proposals are without prejudice to that argument. It is worth drawing the attention of the House to that interesting discussion in chapter 4 of our report.

Saville Inquiry

Lord Bew Excerpts

Tuesday 15th June 2010 Lords Chamber

[Lord Strathclyde]

My Lords, I very much agree with what the noble Lord said and hope that he is correct in his conclusion.

[Lord Bew]

My Lords, I thank the noble Lord the Leader of the House for the clear way in which he laid out for us the painful conclusions of the tribunal of the noble and learned Lord, Lord Saville. I declare an interest since sometime in the last century I was a historical adviser to that tribunal.

There was one point in the noble Lord’s Statement that I would like to pick up on. He reminded us that our security forces lost 1,000 lives in Northern Ireland. That is around 28 to 30 per cent of the total amount of life lost. The security forces were responsible for about 10 per cent of the fatalities suffered. On the other hand, the Provisional IRA and its allies took slightly less than 60 per cent of all the lives that were lost and accounted for only 12 to 13 per cent of the total fatalities suffered. In other words, our security forces were much more likely to fall in the line of duty than those who had the advantage of surprise. This is my question: does the noble Lord concede that the Widgery report—much inferior as it undoubtedly is to the report of the noble and learned Lord, Lord Saville—sent a signal to the Army about reckless firing on the day; that our Army understood and internalised that message; and that that helps to explain the professionalism and restraint shown by the British Army in Northern Ireland since Bloody Sunday?

[Lord Strathclyde]

My Lords, I cannot possibly speculate as to the effects of the Widgery report on the British Army. The history of the past 38 years stands for itself. However, we are now where we are; we now have, fortunately, a Northern Ireland that is more peaceful today than it has been for many years, with a democratic, directly elected Government and the possibility of genuine unity across the communities, leading to that long-term peace, stability and prosperity that we should all want. The noble Lord, Lord Bew, and others who have spoken from the Cross Benches have great knowledge and experience of, and influence in, what happens in Northern Ireland. I know from what they have said today, and from speaking to them privately, that they want what all of us in this House want—for that peace in Northern Ireland to continue.