European Union (Withdrawal) (No. 6) Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, somebody died this week who was a prominent northern circuit silk—a Queen’s Counsel—in my years in the law. He was known throughout the profession as the Alka-Seltzer because he settled everything. It was of great credit to him and brought him great repute. It is a pity that there are not more Alka-Seltzers in both Houses of Parliament today.

I speak as a remainer who has long been reconciled to having to leave. I strongly and consistently supported the May deal over recent months. One of its merits was that it satisfied no one. There would be no winners, and only when there are no winners are there no outright losers who will continue to bedevil relations in this country.

I am no supporter of the Prime Minister, nor of his team. I am against Prorogation. I am against crashing out without a deal. I am against the narrowing down of the basis of the Tory party and almost everything else. However, I cannot support this Bill. It is truly remarkable—an Opposition Bill; a curiosity which raises one’s suspicions from the outset. It is designed and calculated to have these twin consequences. First, it immediately tells the EU 27 that, if they do not now offer a more acceptable deal than the May deal, instead of the no-deal Brexit—the Prime Minister’s intended consequence which the EU 27 must, heaven knows, in logic be desperate to avoid—they can rest immediately secure in the knowledge that, without an acceptable deal, we will instead remain for at least three months, and who knows on what recurring basis into the future, on whatever terms they choose to impose.

The second twin consequence is that, in the event that there is no deal by 19 October, which is logically more likely because of the weakening of the negotiating position—the first consequence I mentioned—the Bill compels the Prime Minister of this country to go to Brussels, cap in hand, no doubt with Dominic Cummings to heel, in order not merely to seek but to obtain and secure a further extension of what has already been twice extended, on whatever terms the 27 choose to impose this time.

Ordinarily, of course, one normally simply accepts a majority decision of the House of Commons. This House has its very limited scrutiny and revision role. It plays ping-pong, a misnomer if ever there was one. In the game of ping-pong, you are allowed to return service, but that is it. If the server then comes back at you, you are, just occasionally, allowed one more shot. At that stage, your opponent—and he is an opponent—is entitled to win.

In my respectful submission, I seriously question why the usual convention should apply in the particular circumstances of this case, when those promoting this Bill are at one and the same time intent on compelling the deep abasement of our sitting Prime Minister and yet refusing the Government the opportunity by general election to reinforce its right to govern, which we generally take for granted. It seems pretty difficult to me to suggest that the promoters of this Bill are obviously faithfully fulfilling the clear will and mandate of the electorate. The country really wants an end to this. Bring on the Alka-Seltzers to achieve it—by adopting, with some sensible modification, if necessary, the May solution.

Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Lord Brown of Eaton-under-Heywood Excerpts

Monday 28th January 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is imperative in my view, doubtless in common with the great majority of your Lordships, that we reach a deal. I believe that the Government themselves also feel this.

I do not believe that there is any greater chance of the Prime Minister allowing a no-deal Brexit, than there would be—obviously, in very different circumstances —of her authorising a nuclear strike. I am not suggesting that each would cause comparable devastation: plainly, that is not so. Indeed, it is a ridiculous thought. The critical point, however, is that it is vital to keep the risk of each—the possibility of each, however small—in play.

Obviously, no one, however passionately opposed to our maintaining a nuclear deterrent capability, could, while we continue to have it, seek to persuade Parliament to legislate against ever deploying it. Its value as a deterrent lies in the risk, however faint, that in retaliation we just might. So too, I suggest, with the possibility that we just might crash out of the EU. While that possibility exists, it must surely operate as an incentive for us to reach a deal. It is an incentive, let it be emphasised, on all—both on our own Members of Parliament and on the EU negotiators.

It is nothing short of absurd to argue that Parliament should now legislate to take a no-deal Brexit off the table. That would either force us to accept a less favourable deal than we might otherwise get or, alternatively, force us to stay in the EU.

I confess that at heart I remain a remainer, but I have finally come to accept that there should not, and now must not, be a further referendum, certainly not one that still caters to the possibility of remaining in the EU. The only conceivable further vote could be on a choice between accepting the deal on offer and exiting with no deal. But I would not legislate to take the possibility of remaining off the table either.

What of the proposed legislation to force the Prime Minister, if by 26 February she has still not achieved a parliamentary vote for a deal, to request of the EU an extension of the Article 50 process? This, I suggest, would again have the inevitable consequence of lessening the urgency of the need to agree a deal. Everyone acknowledges that EU deals are habitually reached at the 12th hour. Postpone the 12th hour, delay the date by which agreement is required and on would go this ever more depressing and debilitating process.

I do not know whether any of your Lordships have had the time or inclination over recent weeks to watch “Question Time”, now chaired by the estimable Fiona Bruce. I have watched them, and to my mind they have made one thing clear beyond all others: the general public—not every individual, of course, but the great majority—ache for a final end to this saga and are ever more critical of the politicians at Westminster for failing to bring this question to a conclusion.

I recognise, as plainly does the Prime Minister and, for that matter, the EU, that the closer to the 12th hour that any deal is agreed, the more obvious will be the need for what would, we hope, be only a short extension of the Article 50 process for the necessary legislative steps to be completed to give effect to it. But that request for an extension can and, I suggest, properly should be left to be made when the deal is struck, not in anticipation of failure and according to a given timetable.

In the last debate I voted in favour of the Motion tabled by the noble Baroness, Lady Smith. I regret having done so for this reason: in my speech I made it explicit beyond question that I supported the Prime Minister’s deal and was urging Members at the other end to accept it, notwithstanding that the opposition Motion still included some criticisms, although markedly fewer than in the previous, pre-Christmas debate, of the deal’s likely adverse consequences. The noble Lord, Lord Butler, likewise voted for the Motion while also supporting the Prime Minister’s deal. We were therefore dismayed to hear the Opposition Bench thereafter, and indeed again today, lumping together all those who had voted for the Motion as having voted to reject the deal and calculating the majority accordingly.

[Baroness Smith of Basildon]

My Lords, I am sorry to interrupt the noble and learned Lord but perhaps I may just correct him. If he checks my comments of today in Hansard, I think he will see that I have made it clear that this House rejected no deal. My other comment was that we soundly rejected how the other place expressed its views on the Prime Minister’s deal. I made no reference in my speech today to our comments on the Prime Minister’s deal.

[Lord Brown of Eaton-under-Heywood]

I am grateful for that; clearly, one would always accept a clarification. I confess that I understood that what came from the Front Bench was to regard the votes of all who supported the Motion as votes against accepting the deal on offer. If I am wrong, of course I withdraw that point.

In any event, I shall not be supporting the opposition Motion this time. Despite the earlier intervention by the noble Lord, Lord Butler, I suggest that it is expressed in such abstract terms—it uses the hallowed word “appropriate”—begs so many questions and seems so elliptical in what it is inviting that it is mischievous rather than self-evidently helpful. I fear that it, too, could be misrepresented, at least to this extent. It could be misrepresented as support for legislating against a no-deal Brexit or compelling the Government to request an extension of the process, both of which—for the reasons I have already sought to give—I would regard as weakening the Government’s negotiating position and thus prejudicing the prospect of an acceptable early resolution of this most ghastly saga.

Brexit: Withdrawal Agreement and Political Declaration

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 9th January 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I spoke in the December debate and have no intention of wearying your Lordships by repeating what I said then. Indeed, I can only suppose that what I said then remains imprinted indelibly on your Lordships’ recollection. The reason I am speaking again is the vital change in the terms of the opposition Motion put down in the name of the noble Baroness, Lady Smith of Basildon. In the earlier debate, I strongly supported an amendment put down by my noble friend Lord Butler to the then Motion from the noble Baroness. The noble Lord, Lord Butler, made plain that, like a good many of us, he supports the Prime Minister’s deal as the best, or least bad, option or outcome now available, its deficiencies being necessarily implicit in the result of the 2016 referendum—a result which many of us regretted, continue to regret and have long recognised could have no happy ending.

Those of us supporting the deal agreed entirely with the first two limbs of the original Motion from the noble Baroness, Lady Smith: that it is for the House of Commons rather than this House eventually to decide this matter, and that a no-deal outcome—to call it a “managed no deal” is really nothing short of oxymoronic—would be bad news and must be rejected. The problem was that the last limb, the regret part of the Motion, was in such extreme terms and so fiercely condemnatory of the deal now on offer that we could not have voted for that Motion consistently with our wish to encourage the House of Commons to accept the deal on offer. Although her Motion still regrets the damage that Brexit under the proposed terms will cause, it now does so in far from the same extreme terms, and I have concluded—as I understand it, this is exactly what my noble friend Lord Butler has likewise concluded—that we can in good conscience sign up to it consistently with our support for the deal.

The simple fact is that I continue to regret the decision to leave and continue to believe that it will damage us as a nation, but I nevertheless strongly believe that this deal is now the best available outcome and that the various suggested alternatives are worse and put too much at risk. For anyone interested in why I think that and why I have moved away from the earlier support I gave to the proposal for a second referendum, I refer to my speech on 6 December —or, better still, to the speeches by the noble Lord, Lord Tugendhat, and my noble friend Lord Butler on 5 December, reported in Hansard at cols. 999 and 1085 respectively.

I shall now vote for the Motion in the name of the noble Baroness, Lady Smith, but on the explicit basis that I support the deal now on offer. Now is the moment for decision for your Lordships no less than for the Members of the House of Commons. It is now simply too late to try to keep other options open; too late to indulge in criticisms easily made of the Government’s process of negotiations over the last couple of years—criticisms of the Government for not having got the 27 to offer us a better deal. This deal, I respectfully suggest to your Lordships, should, however reluctantly, be accepted and the Commons urged to accept it too.

Brexit: People’s Vote

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, although I remain a remainer, I now earnestly hope that the Government will soon be in a position to put a proposed final deal to Parliament and that Parliament will accept it. In that event, I would not support a further referendum with the inevitable delay, disruption and divisiveness and the difficulty in formulating the questions, and so forth, that that would entail. But it seems very far from inevitable that such a position will be arrived at. In that event, I see the likely alternatives to be crashing out of the EU with no deal, or a general election, both of which are appalling prospects. In that situation I would then strongly support the plea for a further referendum—to call it a people’s vote is absurd, as of course is the Prime Minister’s description of it earlier in the week as a politicians’ vote. The referendum question would then be clear: the deal as negotiated or remain.

Today I touch briefly on what seem to be the two central arguments advanced against a further referendum. The first is that it would be undemocratic. But surely, to invite the public to vote again now that much of the misleading rhetoric of 2016 has been exposed and the true options have become altogether clearer, respects rather than ignores public opinion and is the true democratic way. The point is so obvious that it needs no elaboration. The second contention is that the political establishment would be seen as attempting to deprive Brexiteers of the fruits of their earlier victory. But suppose that the majority was now to favour remaining, whether because some voters have changed their minds in the light of their altered perception of the consequences or because a younger generation of voters would now be included, or both, or whatever. In that event, by what logic could Brexiteers claim that their 2016 victory entitles them still to prevail over a contrary majority view? I can see no logic in that at all.

Suppose that a majority in fact continues to favour Brexit, as well it may. Consider the benefits of a further vote to that effect: Brexiteers crowing, confirmed in their view; remainers finally resigned—if not reconciled—to that consequence; and the Government vindicated in their proposed course and substantially immune from the sort of criticism they will be exposed to if and when, following Brexit, things go catastrophically wrong.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, I strongly support the amendment, partly to give our support to the Prime Minister against those within her divided Government who do not believe that it is important to stay closely associated with these agencies.

Perhaps I may give a little of their history. I was on the staff of Chatham House in the early 1980s when the British Prime Minister, Margaret Thatcher, first proposed the single market and made it clear that what was in Britain’s interests—as well as, she argued, in enlightened European interest—was to replace a tangle of different national regulations with single regulations in a single market. She did not assume that we would get rid of all these regulations but that we would agree on common regulations. Many of the agencies then grew up to make sure that these regulations were observed and enforced, and altered and developed as technology, pharmaceutical research and other things changed. That was why they were clearly in Britain’s interests. There were always some in the Conservative Party who did not believe in that—they believed in deregulation—and thus were dubious about the single market because it was replacing national regulations with common European regulations.

One of the most interesting pieces of research carried out for Chatham House in that period was by an American trade lawyer who wrote about the extraterritorial jurisdiction of US regulations over the United Kingdom until the single market was formed. Very often business, engineering, the chemical industry and the pharmaceutical industry in Britain simply followed American regulation. The idea that we had sovereign regulation on our own did not exist. As the single market developed, so European regulations, over which we had considerable influence, replaced the British adoption of regulations designed for American purposes, which we felt we had no choice but to accept.

That is these agencies’ historical origins and they clearly still serve British national interests. It is therefore important that if and when we leave the European Union we remain associated with them. Technology and research have continued to develop and these agencies therefore serve an increasingly important role. I therefore hope that the Minister in replying will reinforce what the Prime Minister said in her Mansion House speech and make it clear that a major objective of the Government is to remain as closely associated with these agencies as possible, even if Boris Johnson may then denounce it in the Daily Mail.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I share in full measure the hopes and concerns articulated today by so many of your Lordships. That said, if the amendment is put to the vote, I shall not feel able to support it. My approach to this amendment, as to earlier amendments to the Bill, has been essentially that it is fine to tell the Government what they must do once they have achieved what they regard as the best available deal, but it is not fine to seek to impose on the Government requirements as to precisely what that deal must be or how to achieve it. In other words, we can tell the Government what rights Parliament or, as I promoted, the public should have on a further referendum as to what we can do and should do, by way of approving or rejecting the proposed final deal—or, indeed, a decision to exit with no deal—but we should not seek to bind or inhibit the Government in reaching a deal and so risk weakening their negotiating position.

The Bill is not for that purpose but to keep our statute book intact. I urge your Lordships, rather than indulge all our hopes and wishes in this area, to think about whether we ought to put these explicit requirements into this legislation.

[Lord Hannay of Chiswick (CB)]

My Lords, I wonder whether the noble and learned Lord is reading the same amendment as me. The one I am reading, which was so well introduced by the right reverend Prelate, states:

“Nothing in this Act shall prevent the United Kingdom from … replicating”,


or “continuing to participate”. It does not say that we have to do it. It just says that nothing shall prevent our doing it. Perhaps I am reading a different amendment from the noble and learned Lord.

[Lord Brown of Eaton-under-Heywood]

Funnily enough, when I first read the amendment, I took the same point from it that my noble friend has taken. However, it seemed that it could not be so because it simply would not make sense to move an amendment that is not intended to have any effect on the Government as they pursue this legislation.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Adonis (Lab)]

My Lords, I strongly support the amendment and, along with many of my noble friends, I will vote for it.

Few of us would have started from here. Most of us are in the position of the now-famous maiden aunts of the noble Lord, Lord Lisvane, who turned up at the Odeon next to the Electric Ballroom on 23 June 2016 to find that only two films were showing: “Reservoir Dogs” and “The Texas Chain Saw Massacre”. I am now in a position to tell the House what happened after they went to the cinema. They have been in touch and told me that they decided to return home without watching either film. With the noble Lord’s help, they put a DVD on. It was Alfred Hitchcock’s “Psycho”. They are still watching it in slow motion. To their horror, the point they have reached is that of Janet Leigh about to go into the shower—or, to be more precise, she goes into the shower on 29 March next year, in 333 days. The big question facing your Lordships and the country is this: is there a better ending to the film, knowing—as we do—that the British people will suffer serious harm if Brexit proceeds, but equally that we are a democracy and believe in the will of the people?

The only way I can see of deciding Brexit democratically, with a real option to reject it, is a referendum on Mrs May’s withdrawal treaty after she presents it to Parliament this autumn. Like many noble Lords, I am not a fan of national referendums for all the reasons that Churchill and Attlee banned them in post-war Germany. The imperative for a referendum on the Brexit deal is that we currently have a Government in office who believe that they are operating under an instruction from the British people two years ago to withdraw from the European Union. If that view turns out not to be supported by a majority of the Members of the House of Commons when they consider the exit treaty in the autumn but the Government present the treaty as a matter of confidence—which they surely will, and must, given its centrality to government policy—the only constitutional course is for the people to judge whether the Brexit treaty is their considered will or their considered will is to stay in the European Union. This could take the form of a general election but we have already had two of those in the last three years so a referendum looks like a highly credible option.

I want to make three quick points. First, I say this to my noble friends: the amendment straightforwardly supports Labour Party policy. The resolution on Brexit, passed unanimously by our conference last year, stated:

“Unless the final settlement proves to be acceptable, then the option of retaining EU membership must be retained. The final settlement should therefore be subject to approval, through Parliament and potentially through a general election or referendum”.


That is party policy and what the amendment enshrines in law.

Secondly, it is important not to be distracted by subsidiary issues. Is the time ripe? In my experience, the time is never completely ripe, but this is probably the only chance we will get before the withdrawal treaty so there is not much time left and we should seize it. What about the referendum question? Parliament will decide on that; of course, as said by the noble Lord, Lord Butler, it will be a decision between the treaty and staying in the EU, because if the majority of MPs are for a referendum, that is the choice they will want to put before the country. Is a referendum too divisive? Well, it will be, but nothing like as divisive as when Brexit goes badly wrong, there is a search for scapegoats and we have to try to get back into the EU after we have left.

Finally, I want to make a point about abstention, which, to my great regret, is my party’s whip. On the great issues of life and politics, it is hard to abstain with dignity and self-respect. All of us will be asked what we did. I for one do not intend to say, “I abstained”. I will say, “I voted for the British people to be in control of their destiny at a moment of supreme national crisis”.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I abstained on the last vote because I thought that many of the arguments against that amendment were very powerful and it was, in many ways, a defective amendment. However, I strongly support this amendment. I have no such doubts. I support it even though I readily recognise that it is entirely possible—many people think, highly likely—that in a further referendum, the vote would again be in favour of leaving. This time, I suggest there is much to be said for making the next referendum, unlike the first, legally binding, with no question of “neverendums”.

Of course, the public have already voted, and certainly that vote—although not legally binding—made it imperative that we give an Article 50 notification. We have done that and continue to explore what terms for leaving the EU are available to us. The public cannot yet vote on those available terms, but why should they not eventually be allowed to do so? Surely not even the most fervent Brexiteer would argue that a further referendum would not present the public with an altogether clearer, and better informed, choice than last time. Why would that not be properly regarded as giving them a further choice and further respecting, rather than betraying, the earlier expression of the popular will?

I have struck out a great deal from what I was intending to say because much of it has already been said by others. However, I should deal with one further point. An argument, which I confess initially troubled me against a further referendum, is this: because the other 27 countries would prefer us to remain, as I think most people believe, if there is a further referendum, they will make the terms of leaving as unattractive as possible to maximise the chance of the public rejecting the deal on a further vote. So, it is said, a commitment to a further referendum would compromise our negotiating position. But I have concluded that, ultimately, that is a completely unreal objection.

In the first place, given that a further vote could very well still, as I say, be to leave, and that if, finally, we were to do so, then it is patently in the interests of all the EU states that we leave on mutually beneficial terms. I do not believe that the proposal of a further referendum would, in truth, worsen those terms. But put that thought aside. The plain fact is that, in any event, there is an obvious and powerful reason why the remaining 27 will not wish to allow us too favourable a deal—namely their concern to discourage from leaving any other state which is possibly inclined to exit the Union as we now propose.

One other point I will touch on is that made by my noble friend Lord Green of Deddington. I am not sure that the noble Lord, Lord Butler, quite appreciated it. What I think my noble friend Lord Green said is: how do we know that we will not, if we vote to remain, lose the rebate and our right not to be within euroland? The noble Lord, Lord Kerr, has made it plain—there is nobody better able to do this—that, in his view, a right to withdraw our notification must inevitably leave us in the same position as we started in. I support that view too. Again, given that the other 27 would want the vote to be to remain, I think that they would readily make that clear.

In short, the case for the public to have the final vote on this really most momentous of issues, perhaps in many of our lifetimes, now seems to be overwhelming and I urge your Lordships to support it.

[Lord Howarth of Newport]

My Lords, this amendment is reckless. It is peculiarly reckless proposed in an unelected House. It would be reckless if it were to be entertained by the elected House. The 2016 referendum generated bitter divisions in our country. To rub salt in those wounds and fan the flames of that anger by offering this option, raising hopes of a further referendum, seems to be most unwise. My noble friend Lord Adonis, in his Hitchcockian script, truly made my flesh creep.

The 2016 referendum exposed depths of mistrust and resentment against the political establishment and against what has broadly been the policy orthodoxy of recent decades. The appropriate response to that, surely—even if you deeply disagree with the view that was taken by the majority then, even if you consider that people were voting against their own best interests—is not to say, “You are stupid, bigoted and ignorant. You are wrong. You should think again and get it right”. That is how it will be perceived.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

I intervene to ask the Minister whether he agrees with this. Although —and I support the amendment—it is right to say that “necessary” involves a degree of objectivity, the clause would actually be applied in court on any challenge, and it would be a judicial review challenge to the making of regulation, on the basis that it is, in the reasonable opinion of the Minister, necessary. That is how the clause as amended would be applied on a challenge in court. Would he agree?

[Lord Goldsmith]

I am delighted to be described as a Minister in that question—not a role that I am eager to take on—but it may be that the question was intended for the Minister himself when he comes to respond.

The important point, as the noble Lord, Lord Tyler, made clear, as did other speakers, is that, as the Bill stands it is subjective and imposes a vague, low test. It is subjective because it is what the Minister considers, and it is a low test because it is what he considers appropriate.

As I told your Lordships previously—I will repeat it just this one last time—as someone who has spent a life as a practising lawyer, a court advocate, advising Ministers and being a Minister, I know that there is all the difference in the world between saying, “You can do this if you consider it appropriate”—nobody can second-guess that—and saying, “You can do this if it’s necessary”. It introduces an objective test, and that is what matters. This is what we invite the House to say to the Government is necessary in these circumstances. That is the only power they should take, and I hope that when the noble Lord presses the amendment to a vote, it will be supported by many Members of this House.

--- Later in debate ---

[Lord Wigley (PC)]

My Lords, I intervene briefly in support of the amendment moved by the noble Lord on the question of animal sentience. I should declare an interest. I am an honorary associate of the BVA and I want to underline the representations that it has made—I think that a number of noble Lords will have received them at various times. It feels very strongly that steps need to be taken prior to Brexit to include provisions for animal sentience in UK law. When representations of this sort come from such a respected body as the BVA, I think that we are duty-bound to take good notice of it, and I hope that noble Lords on all sides of the House will act accordingly tonight.

[Lord Brown of Eaton-under-Heywood]

My Lords, I want to follow up on what my noble and learned friend Lord Hope said. He referred to proposed new subsections (4), (5) and (6), which deal with the devolved Administrations, but of course Clause 3 deals with our central Parliament and thus the English position, and exactly the same point arises.

My further concern is that, assuming that we did not have that apparent bar on any question of judicially reviewing Ministers of the Crown, it would be very difficult to see by what sort of touchstones any legal challenge would work. Proposed new subsection (1) says:

“Ministers of the Crown and the devolved administrations must pay due regard to the welfare requirements of animals”.


Heaven knows, I hope that I am as anxious as the rest of the House about the welfare of animals—certainly, my cat would never forgive me if I were not—but, as I understand it, the only substantive provision in this proposed new clause is subsection (7), which requires an annual report, although that is obviously a separate and discrete obligation. However, I am not quite sure how judicial review in this context would work or, without it, what is envisaged in the way of Parliament exclusively holding Ministers of the Crown to account. It is all rather abstract and I am a little unsure of how it is intended to work.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the noble Lord, Lord Trees, has introduced the amendment in his characteristically persuasive manner. He has an exemplary record in the area of animal welfare. As a senior veterinary surgeon, he has enormous professional knowledge and, above all, personal courage in being prepared to speak up about what are often controversial matters. I have had the privilege of working with him on a number of areas of welfare: the welfare of animals at the time of killing, or WATOK, regulations; meat labelling; the export of live animals and so forth. Therefore, I like to think that my commitment to an appropriate standard of animal welfare is not in question, and I believe that a reading of Hansard would show that.

However, as I have told the noble Lord, I am afraid that I cannot support him this evening. We are discussing the European Union (Withdrawal) Bill, which is focused on the process of disentangling this country from the European Union, not on the shape of policy post Brexit. Special issues such as animal sentience, important and vital though they are, are not really part of that withdrawal process. However, I can promise the noble Lord that when we come to discuss animal sentience and welfare in legislation focused on the policies of the new world, I shall be right there with him to ensure that there is no diminution, weakening of or sliding away from proper standards of animal welfare. On that, the noble Lord, Lord Trees, can count on my full support. But not, I am afraid, on this amendment this evening.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am a remainer, but I am one despite—not because of—the charter. To leave the EU but nevertheless retain the charter as part of our domestic law would be the worst of all possible worlds, the very opposite of Panglossian.

Before explaining why I oppose Amendment 15 so strongly, let me acknowledge that getting rid of the charter represents an exception to the broad principle that the Government have stated as the central objective of this Bill: ensuring that our laws will be the same on the day after Brexit as on the day before. I accept that, in certain limited respects, the charter confers rights not available under either the European convention—to which we remain and intend to remain party—or our own, ever-dynamic, common law on human rights. Perhaps the best—certainly the most often cited—example of this is the Watson case, to which the Secretary of State for Exiting the European Union, David Davis, lent his name at one point. The case held that one part of the Data Retention and Investigatory Powers Act 2014 breached a particular charter privacy provision, which was found to go further than Article 8 of the convention. That has now been corrected in the Data Protection Bill, which is currently before the other place and will shortly come back to us on ping-pong. It is to that Bill, not the charter, that we will henceforth look in terms of data rights protection. Watson points up another aspect of the charter: although it applies only to the implementation of EU law—a real problem that I will have to come back to—where it applies it goes wider than the convention because it requires the courts here to strike down and disapply our primary legislation. I regard that as a minus, not a plus; it is a flaw, rather than a virtue, in the charter and it is of course inconsistent with the Human Rights Act approach.

Besides being a remainer, I am also a strong believer in parliamentary sovereignty and the supremacy of Parliament. Twenty years ago, when the Human Rights Act was enacted, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg—who I am happy to see in his place today—incorporated, very wisely and skilfully, the rights accorded by the convention into our law on the explicit basis that if our legislation is shown to be inconsistent with a convention right, the courts can and will declare so. They can make a declaration of incompatibility, leaving it to Parliament to adjust the position as it thinks right and proper. However, our courts cannot strike down primary legislation. That constitutional arrangement was carefully decided on; indeed, it has helped to keep our judges out of the firing line and out of conflict with Parliament. It is unlike the position in the United States where, as noble Lords know, Supreme Court Justices are highly politicised figures. Here, Parliament remains sovereign—but not in those rare cases where the charter applies.

The other case, besides Watson, that best illustrates this point is the Benkharbouche case, which has been mentioned once or twice in our debates and was decided by the Supreme Court here just 18 months ago. I shall briefly summarise. Two north African nationals, one of whom has given his name, Benkharbouche, to the case, following their dismissal from employment by two north African embassies here in London, brought claims against those states in the employment tribunal. Some of those claims were based on our domestic law—unfair dismissal, non-payment of wages, refusal of holiday pay—but others, particularly under the working time directive, were based on EU law.

On the face of it, all claims, domestic and EU, were barred by the State Immunity Act 1978—primary legislation—which denied claimants the right to sue embassies in this country. Barring access to a court is, unsurprisingly, a breach of the right to justice and therefore a breach of the European Convention on Human Rights at Article 6 and of the charter at Article 47. The result of the case, which I suggest was deeply unsatisfactory, was that the EU claims succeeded—the State Immunity Act was disapplied in their case—but the major domestic law claims of unfair dismissal and so forth failed because the court, under the Human Rights Act, declared simply that the State Immunity Act was incompatible with the convention.

This curious and regrettable anomaly in our law and its effect on the position of the judges has attracted very little attention because until recently the charter itself has been little noticed in litigation in this country. When, in a brief intervention in Committee on 26 February at col. 544, I put this problem to the noble and learned Lord, Lord Goldsmith, he suggested that the charter could be appropriately amended after this Act by delegated legislation. Opinions vary on whether that is possible but, either way, does it really make sense, given that we are now leaving the EU—regrettably, as I have indicated I feel—to carry over into our own law an instrument designed specifically for use only in the EU context, which, on occasions, requires our judges to disapply our legislation?

Thus far, I have focused on just the constitutional incongruity of the charter given the Human Rights Act, but there are other very powerful objections to our domesticating the charter. I will briefly touch on two real objections. I hope others hereafter will expand on these. One is the striking vagueness of the charter’s many articles. Some of course provide for real rights and those almost entirely and substantially overlap and mirror the convention rights that we have anyway, but much of the charter is merely aspirational—statements of broad principle. Indeed, Article 52(5) of the charter makes the distinction between principles and rights, and limits the legal effect of the principles—not that that distinction is by any means clear. Many legal commentators have described it as entirely confusing. For example, the so-called rights of the elderly are given as an example of a principle as opposed to a right. The noble Lord, Lord Pannick, suggests that certainty and clarity would be advanced by his amendment. I respectfully suggest, on the contrary, that they would be very far from advanced. This would be wonderful for the lawyers, but frankly, for few others.

The other central objection is that the charter, as I indicated, can only ever be used when “implementing EU law”. That in itself is a notoriously uncertain concept. The boundary between what is domestic law and what is the implementation of EU law is one that we are now sensibly intent on simply sweeping away. In response to another intervention of mine in Committee, at col. 549, the noble Lord, Lord Pannick, suggested that the charter would continue to apply just to EU law, which he identifies as all the law which is to be retained under this Bill. What if that law comes to be amended by Parliament or by secondary legislation, as some of it surely will? For example, if we were to consolidate all employment law provision so that in future Benkharbouche-type cases all claims would fall under a new UK statute. I suggest that it would be nothing short of absurd to perpetuate the distinction between EU law and domestic law, a distinction that will recede ever further into history, simply to continue to provide an area of law in which the charter would operate.

In short, I agree with everything that the noble and learned Lord, Lord Goldsmith, had to say back in 2009 when seeking to keep the charter out of the Lisbon treaty. But at least then the charter had the merit of constraining the exercise of legislative power by EU institutions, which were not subject to the constraints of the European convention. At least, too, we were then a member state and our citizens were citizens of the Union. What folly it would now be, as we leave the Union, quite unnecessarily to incorporate the charter as part of domestic law. I urge your Lordships to reject the amendment.

[Lord Howarth of Newport (Lab)]

My Lords, two main arguments have been put forward today and in Committee for writing the Charter of Fundamental Rights into our law. One is that we must bring the charter across into our domestic law because it would be anomalous not to do so; it would be inconsistent with the Government’s purpose in this Bill of transposing the whole body of EU law that presently binds us. It would be offensive for me to pray in aid Ralph Waldo Emerson’s dictum,

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen”,


and peculiarly inappropriate when the noble Lord, Lord Pannick, is the most ardent advocate that consistency should be our guiding principle here, supported by his distinguished co-signatories. Nevertheless, consistency is a poor justification for incorporating the charter. Schematic approaches will not serve us well in these impassioned and volatile political times.

I recognise the compelling practical reasons for transferring existing EU law into our domestic law, so that we are not sucked into a legal void at the moment we cease to be a member of the EU. However, it does not seem a necessary or desirable consistency to include in that transfer a charter which does not have value as the fountain-head of human rights and whose title, the Charter of Fundamental Rights of the European Union, portentously symbolises the very jurisdiction that the people of this country have voted to reject and which will be a diminishing element of our law as they are progressively released from it through their Parliament’s future legislative work.

The other main justification offered is that we need to hold on to hard-won and precarious human rights. That is a good motive, which I share, but it does not follow that we should transpose the charter. People who want to do so say that our constitution has saddled us with an elective dictatorship, that Parliament cannot be trusted in these days of political extremes, and that the charter should be valued as a foundational document in a developing written constitution. It is suggested that we need more checks and balances, not so much against the Executive as against Parliament itself. Happily, for those of this cast of mind, the judges are available. They, it is hoped, will imbue our polity with a higher wisdom than that of the people’s elected representatives, disapply statute when Parliament gets it wrong and rescue us from ourselves and our tendency to excess.

Have we, as parliamentarians, entirely lost confidence in the institution that we have the honour to serve and of which our country was once so proud? As we debate Brexit it sometimes appears that for many remainers almost anything is preferable to resuming full responsibility for our own decisions in our own parliamentary democracy. “Yes”, they say, through gritted teeth, “of course we respect the vote of the people on 23 June 2016, but actually it would be safer to stay in a protectionist customs union and a single European market in whose governance our elected representatives will have no say, and with Parliament trammelled by unelected judges constrained to follow the developing practice of the European Court of Justice”. If parliamentarians do not trust Parliament, why should the people do so, and then what happens to our democracy? I say gently to my noble and learned friend Lord Goldsmith that this is not about ideologically driven hatred of the European Union, as he suggests in today’s Guardian, but about commitment to the renewal of parliamentary democracy.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 7th March 2018 Lords Chamber

The noble Baroness explained the purport behind Amendment 60, and I look forward to hearing what the Minister has to say on that issue too.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, what I am about to say is designed to help—although whether it achieves that may of course be doubted. The Government have stated that the central object of the Bill is to ensure that the law on the day after Brexit is the same as on the day before. But it is also the Government’s stated aim—one I would hope is shared by all, or certainly the great majority, in the Chamber—that the EU law retained is certain and clear rather than left in very considerable doubt. I would suggest it is that which explains provisions such as paragraph 2 of Schedule 1, relevant to the question of whether the general principles of EU law are retained, which features in the provision under Clause 6(3), which we are now discussing. Indeed, it also explains Clause 4(2)(b), which we talked about a few days ago—although it seems like weeks—and the non-incorporation of the charter, although I shall show very considerable restraint and not go further down that road. We keep straying on to it—although I had thought that, at least for Committee stage, we had put it to bed some while back.

The amendments in this group, I suggest, will not assist in clarifying and making certain and predictable the application of retained EU law. I therefore cannot support them.

[Baroness Young of Old Scone (Lab)]

My Lords, I support Amendment 58. This comes down very simply to the fact that, as a result of the discussion we have heard today, the recitals and preambles either are brought across automatically—in which case, some of the statements made in the debate in the other place on this issue, which were quite lengthy and considerable, need to be re-examined, because my impression of those was that there was no guarantee of preambles and recitals being brought across—or they are not clearly brought across, in which case we need something in the Bill that does so. So I would be very grateful if the Minister would clarify, first of all, whether he believes the Government are convinced that they are already clearly brought across.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak very briefly, first, because it is already past my bedtime and, secondly, because noble Lords have already outlined some of the problems. It was a pleasure to hear the noble Lord, Lord Renfrew, speak on this matter in relation to archaeology. I started a speech about 15 years ago, when he was in the audience, by saying that when I was a trainee archaeologist he was such an icon that I thought he was already dead. I am therefore absolutely thrilled to see that he is still not dead; it is always a pleasure to hear him.

I want to put my comments in simple terms so that Members of your Lordships’ House on the other Benches understand exactly what the problem is with the EU withdrawal Bill on this issue. Amendment 28 —and, by implication, Amendment 26—is designed to make sure that we do not miss out on important parts of EU law; namely, directives. EU directives place obligations on our Government to act in particular ways, such as bringing forward particular legislation. Examples include the working time directive, a social measure, and the habitats directive, an environmental measure. These directives cover a wide span of issues. The wording of the Bill leaves huge gaps that these important directives could fall through. The amendments would plug those gaps and make sure that they are all brought over into UK law. They would also allow or require Ministers to make sure that these directives are properly implemented so that we receive whatever benefits, rights and remedies were intended. As has been said several times, the big problem with the approach set out in Clause 4 is that it will exclude legal rights simply because they have not been litigated on. I do not see the sense in that. I am sure the Government will see that it needs a little bit of fixing and that we will see some positive compromises come forward.

[Lord Brown of Eaton-under-Heywood (CB)]

I rise to seek clarification on the precise objective of Clause 4(2)(b) in this whole pattern of legislation, and therefore on the effect of the attempt made by the noble Lord, Lord Pannick, to get shot of it. As I understand it, Clause 4(1) faithfully reproduces Section 2(1) of the 1972 Act. On the face of it, these directly effective provisions are to continue to apply. Of course, it is not always easy to decide what is a directly effective provision that comes within the ambit of Section 2(1) of the 1972 Act, which is here given effect to. As I see it, though I may be quite wrong—I should like the Minister to confirm or reject this—subsection (2)(b) is there basically to say: “Look, if it’s one of those doubtful provisions as to whether it is indeed a directly effective provision under the EU legislation, whether it is completely unclear—there isn’t a case on it—and nobody has specifically suggested that it is, it is not to be argued henceforth that it is”. In other words, the certainty and clarity that this legislation overall is designed to achieve is supposed to be advanced by getting rid, in Clause 4(2)(b), of cases where the past jurisprudence simply leaves the thing high up in the air with no proper guidance.