Outcome of the European Union Referendum

Lord Carlile of Berriew Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Hooper. On matters European, she brings to this House both knowledge and wisdom. She may also still be the most popular Conservative in Liverpool—admittedly a relatively small cohort but still a great distinction.

I wish to headline my comments with a question. Where does Parliament stand in all this? I propose to address some of the comments raised by, for example, the noble Lord, Lord Kerr, the noble and learned Lord, Lord Brown, and others earlier in the debate, but I want to focus on the process that follows the referendum, especially the role of both Houses of Parliament. In that context, we in this House are entitled to assume that Her Majesty’s Government have assessed the legal and constitutional consequences, and I believe that in the closing of this debate we are entitled to hear what advice the Government have been given about those consequences. I will not hold my breath but it will be astounding if they have not been analysed properly.

What concerns me, among other things, is the relationship between democracy and democracy. We do not legislate by referendum but it is part of our democracy. I suggest to your Lordships that, in adopting one expression of our democracy—the occasional referendum—we should not supplant another, permanent element, which is the deliberative democracy we have in Parliament.

I wanted, and voted, to remain but I recognise that we must respect the result of the referendum. However, that does not mean that we slavishly leave the European Union whatever the terms may be. I suggest to your Lordships that the clear duty of the Government and of both Houses is to attempt in good faith to give effect to the will of the majority expressed in the referendum. However, I also suggest that it is absolutely clear, as a matter of law, that Parliament would not be bound to give effect to the referendum if the only terms on which the UK could leave the European Union were shown to be seriously damaging to the national interest. Indeed, I cannot believe that the leave campaign wanted to damage the national interest.

To put it another way, I invite the noble Baroness, in responding to this debate, to confirm the following: that, despite the referendum result, if empirical analysis of negotiations shows that the disadvantages faced by the United Kingdom on leaving the European Union are disproportionately damaging to the national interest compared with the advantages of remaining, Parliament will properly have the right to show its will accordingly. I believe that the answer to that must be, “Yes. Parliament would have that right”, but we are entitled to know the Government’s view.

[Lord Lawson of Blaby]

Will the noble Lord—

[Lord Carlile of Berriew]

Perhaps I may be forgiven. I turn now to some narrower legal issues. I ask the noble Baroness, in responding to the debate, to explain the effect, if any, of Section 2(2) of the European Communities Act 1972. As I understand that section, if the trigger to leave the European Union, as seems to be agreed, is the Article 50 process, that process falls squarely within Section 2, and I shall explain in a sentence what that means. To pull the trigger of Article 50, Section 2(2) requires the Government, at the very least, to obtain the consent of both Houses of Parliament to a requisite statutory instrument. If that is so, does not Parliament have a legitimate expectation that considerable detail of the proposed terms of exit from the European Union will be disclosed as part of the relevant statutory instrument, or at least in the Explanatory Notes, and that it will therefore be a transparent part of the proposed Article 50 process?

Do the Minister and the Government agree that the ultimate decision to leave after the Article 50 process has been completed is one for which legislation is required and for which, therefore, the views of both Houses of Parliament are necessary? At the very least, even if legislation is not required, can the noble Baroness agree in due course that for so momentous a decision as leaving the European Union, which I suggest—I hope without extravagance—is comparable to a decision to be involved in a war in some part of the world, the Government should accept that a fully informed decision must be required of Parliament, or at least of the House of Commons, the elected House? In sum, I am saying that we need to know the legal position. This House and the other place need to understand the legal rules behind this process. An attempt was made to explain them in a paper published a couple of months ago but a host of questions have arisen ever since.

Finally, I ask the Minister to explain how this House and the other place are to be informed on a real-time basis of the work of the team led by Oliver Letwin MP, as announced by the Prime Minister. We have an excellent House of Lords committee, chaired by the noble Lord, Lord Boswell of Aynho, who spoke earlier, but that is surely only part of the picture. Would it not be sensible for a Joint Select Committee of both Houses to be established for the specific purpose of providing scrutiny of this most important process?

A complex historic process has been commenced by what I regard as a simplistic binary question. Many untruths and half-truths were told during the referendum campaign, possibly by both sides. Now, we need confirmation that, in contrast, the parliamentary part of the process will be legal, decent, honest and, if truthful is too much to ask for, at least reasonably well informed. Pericles, one of the great originators of democracy, said:

“Although only a few may originate a policy, we are all able to judge it”.

I suggest to your Lordships that Parliament should be allowed to judge this issue in an informed way—not one that is slavish to the referendum—before a final conclusion is reached.

G20 and the Paris Attacks

Lord Carlile of Berriew Excerpts

Tuesday 17th November 2015 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, we published the counter-extremism strategy in October. It is very important to stress that it is about supporting mainstream and inclusive Muslimist voices, and showing that we actively back them. There are four strands to our counter-extremism strategy, and building cohesion among communities and ensuring that we take steps to prevent the radicalisation that is such a serious threat is very much part of that.

[Lord Carlile of Berriew (LD)]

My Lords, will the Government consider expediting the enactment of the Investigatory Powers Bill, perhaps with a sunset clause and detailed post-legislative scrutiny, to ensure that the security services have the proportionate facilities they need, and to enable an informed judgment to be made of the provisions in action?

[Baroness Stowell of Beeston]

I know that the noble Lord and many others in this House are concerned, and rightly so, to ensure that our security services and counterterrorism measures are adequate for the threat we face. If there was any suggestion that that was not the case, clearly, we would want to look at that and take the necessary steps. The Investigatory Powers Bill, which is about to receive pre-legislative scrutiny, is landmark legislation that futureproofs the existing legislation, which gives the powers the security services need at this time. So while the noble Lord makes some interesting points, what is important is that that Bill receives the proper scrutiny that Parliament expects it to receive. However, at the same time, I assure the noble Lord and the House that, if there is anything the security services do not have now that they need to do their work, we will review that legislation and reconsider our approach to it.

Iraq

Lord Carlile of Berriew Excerpts

Friday 26th September 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I am privileged to follow the noble and learned Lord’s reassurance on the international legal issues, with which I wholeheartedly agree. I, too, support the decision to obtain a parliamentary mandate for air strikes against ISIL in Iraq. The holocaust that ISIL has started has shocked the world.

What I want to say has not yet been said in this debate: it is incumbent on this House and the other place to support the service chiefs who will now have to conduct the military campaign. What has been started is a military campaign and they must be allowed to conduct it with the usual military control techniques and to the highest military standards.

In doing so, they and we are entitled to expect regional allies to put in ground troops, for aerial might alone can cause severe damage but will not totally destroy. For example, aerial strikes will not take survivors as prisoners to render them ineffective or bring war criminals to justice. That means that we must be prepared to train ground forces—those of Iraq and possibly other allied countries—and avoid the debacle of the weakness of the forces of Mr Maliki’s discredited Government as they collapsed under the approach of ISIL. Somebody’s boots on the ground will be a requirement for success and there will have to be boots in both Iraq and Syria.

However, in allying with other countries, we must be careful about some. The influence of Iran, particularly its Quds forces, on the Maliki Government has been extensive and has diminished the protection of minorities in Iraq. I suggest to the Minister that if we sup with Iran, there should be a long spoon at the table.

In addition to air power, can we be assured by the Government that we will also deploy our own Special Forces, who have skills beyond those of any other country in the world; that we will deploy our own intelligence services’ formidable capability alongside those of, especially, the United States and France; and that the effective use of military command and control will be able to function with as little unnecessary political and juridical inhibition as possible? We must recognise, too—must we not?— that the borders between Iraq and Syria are long and, in many places, arbitrary and artificial. Hot pursuit should be recognised as an appropriate measure, whether from land or air. If there is a large-scale transfer of assets by ISIL from Iraq to Syria, we must be able to consider immediately whether today’s decision should be varied. I have seen the limited legal advice issued by the Government this morning and I regret very much that it does not deal with or anticipate those issues.

Finally, I turn very briefly to terrorism within the UK. It is self-evident that there is a real threat that a violent jihadist supporting ISIL, if he has safety and the means, will make as sophisticated an attack in the United Kingdom as he can muster and that, in the medium term at least, this threat will endure. The waging of an aerial war abroad will raise the potential for a terrorist reaction at home. I therefore urge the Government to listen to those of us who call for the public to be protected, in the short-term at least, by strengthened but proportionate counterterrorism measures. I also urge an increased focus on the Prevent strand of counterterrorism policy in terms of both funding and deployment. Partnership with Muslim communities to make Prevent more effective can make a substantial contribution to the safety of our citizens—including, of course, British Muslims.

Woolwich and the EU Council

Lord Carlile of Berriew Excerpts

Monday 3rd June 2013 Lords Chamber

[Lord Hill of Oareford]

I certainly agree with the common-sense point that the noble Baroness makes, and I am sure that everyone would agree. On her first point, the particular Council meeting talked about tax, but I will make sure that my colleagues who deal with these things day to day have heard the noble Baroness’s remarks about employment rights and the rest of it.

[Lord Carlile of Berriew]

My Lords, as part of our memorial to the late Drummer Rigby, will my noble friend assure the House that the Government remain committed to the “Prevent” strand of counterterrorism policy, and that they will ensure that it is not deprived of funding, as it has been in the past two years? Further, will he give an assurance on behalf of the whole Government that the communications data issue will be reconsidered on the merits, on the evidence and on a multipartisan basis, and on no other foundation?

[Lord Hill of Oareford]

I am aware of my noble friend’s strong views on the communications data point. As my right honourable friend the Prime Minister said this afternoon, we need to look at these issues extremely carefully, in a sensitive way but bearing in mind those facts of the sort to which my noble friend refers. On his first point, it is clearly the case that the “Prevent” strand of work that the Government carry out is extremely important. It has been successful in many ways. We will step up the focus of the Government’s work on addressing radicalisation, and we will obviously need to make sure that the agencies charged with that work are adequately funded.

Phone Hacking

Lord Carlile of Berriew Excerpts

Wednesday 13th July 2011 Lords Chamber

[Lord Strathclyde]

My Lords, it is too early to come to any definitive view but, of course, as the reports are made they will be taken seriously. If there is any action to be taken at that time and it is appropriate to do so, then we shall do so.

[Lord Carlile of Berriew]

My Lords, given that anyone who knows or has encountered Lord Justice Leveson knows that he will dig deep and report robustly, can we take it that the helpful enthusiasm of Select Committees in another place will now recede a little into the background, so the time taken up in dealing with those Select Committees can be used in the inquiries by Lord Justice Leveson and by the very reputable deputy assistant commissioner, Sue Akers?

Police Reform and Social Responsibility Bill

Lord Carlile of Berriew Excerpts

Wednesday 11th May 2011 Lords Chamber

[Baroness Hamwee]

I thank the noble Lord. I have explained why I think it is still appropriate to debate the amendment.

At local government level, there was a format. For each new authority’s structural change order, there was an implementation executive which was adapted to local circumstances and literally shadowed the executive. There was preparation of an implementation plan, which included,

“such plans and timetables as the Implementation Executive considers necessary to secure effective, efficient and timely discharge of”,

the functions, in that case, and such budgets and plans as it considers necessary or desirable to facilitate the economic, effective, efficient and timely discharge of the functions after the relevant date. As I said, this is not the same as a local authority, but the noble Lord will recall, as I do, that when the Greater London Authority was formed, there was a period of shadow working—probably insufficient; it was a month or so.

Whatever arrangement we end up with—after the debate this evening, we are not without a proposed new structure—I am concerned that it should work as well as possible. Schedule 15 provides for transitional provisions. I am sure that the Government believe that everything has been covered in the schedule. Experience might suggest to many of your Lordships that it is hard to anticipate precisely everything that needs to be covered and that there is a risk in such a big bang approach. It is better, in my view, to allow time to consider the detail, because things always seem different once you are in the thick of things, when issues may be thrown up, than when you are anticipating them.

However much thought has been given to both the schedule and the transition board, which I understand the Home Office has formed—chaired, I think, by the police Minister—it would be wise to provide some arrangement which will allow for what may not have been anticipated in the legislation. I do not think that my drafting is of the finest order, but there is an issue here. I beg to move.

[Lord Carlile of Berriew]

I am puzzled, even in the context of this place, by the procedure being followed at present. Were we debating the amendment in the normal circumstances that many of us, at least, anticipated on the government side, I would oppose it because, as I said earlier, I support the view that we should have democratic accountability for police forces, although my preference is for elected police authorities. I am very disappointed that we cannot debate that issue as a result of pre-emption. That might have been an intelligent debate on a subject with some empirical evidence on which the House could have offered some wisdom to the Government. Indeed, I was beginning to feel a little like Baldrick, because I thought that I had come up with a cunning plan and, rather like Baldrick, had not anticipated that it might be effective on the odd occasion.

This debate reminds me of the childhood poem that starts, “I met a man upon the stair”. The man is the elected police commissioner but he is not there because, in reality, he has just been removed from the Bill by the vote. To put it another way, it is like the Mad Hatter’s tea party without either the Mad Hatter or the tea. I urge my noble friend Lady Hamwee to draw stumps in some way on this group of amendments so that we can in due course have a proper debate on the proper predicate. The predicate for the whole series of amendments that follows is that Clause 1(1) has been agreed.

[Baroness Farrington of Ribbleton]

The noble Lord will remember that the final line of the poem is, “I wish that man would go away”.

--- Later in debate ---

[Lord Carlile of Berriew]

Touché! I, too, wish that the man would go away—and I am grateful for the reminder—albeit to be recreated in the form that I wanted to discuss on my amendment. I take the opportunity to repeat that that amendment may well command quite a lot of support after what happened earlier this evening and it may provide some kind of solution.

As I have just said, this is all predicated on something that has been defeated. I very respectfully say to my noble friends on the government Front Bench, who know that I broadly support them in this context, that it is not acceptable for your Lordships’ House to have this kind of artificial debate in what seems like fairyland. I simply ask for the position to be reconsidered. Many substantive issues in the Bill can be debated. For example, I know that my noble friend Lady Doocey has some very important matters to raise in relation to London, and I hope that we can have a really good debate on those. There are substantial matters relating to licensing, and we can have real debates on those issues, too. I am proposing a new clause about war crimes and the universal jurisdiction, which I shall debate with anyone at any time. I shall do that off the top of my head right now if that is desired. However, those are examples and I do not wish to catch the Minister unawares, but I think that we could proceed with a number of serious issues without indulging in this artificial exercise.

Therefore, in the spirit of a government supporter, like my noble friend Lord Blencathra, I ask the Government to think again and to bring us back to some form of order. I know that we cannot raise points of order as such in your Lordships’ House but there is a question of order of great substance here which I invite the Chair to consider.

[Viscount Eccles]

Is not the matter in the hands of the mover of the amendment? If that person simply says “Not moved”, we proceed to the next amendment. Therefore, the decision as to whether any particular amendment is debated is in the hands of the mover.

[Lord Carlile of Berriew]

That may well be technically right but it may require an expression from the government Front Bench that, if my noble friend decides not to press these amendments, the Government will be willing to return to them in a proper sequence in the correct context in due course and not use any procedural matters to prevent her continuing with this debate on the proper predicate.

[Lord Wallace of Saltaire]

My Lords, it is my understanding that we are now operating on the assumption that Amendment 31 has been consequential on what happened with Amendment 1. I draw the Committee’s attention to Amendment 31, which says:

“Insert the following new Clause—“Police Commission … There shall be a body corporate for each police area listed in Schedule 1”,

and that it,

“shall consist of … a police and crime commissioner, and … a police and crime panel”.

That provides the basis for discussing a number of amendments that concern the role of people who will now not be directly elected police and crime commissioners, but who will continue to have a number of functions to which the amendments, which include some tabled by noble Lords whom I see on the opposition Benches, apply. It seems entirely appropriate that we should continue to do that. A number of amendments in Part 1 also apply to the mayor's office for crime and policing, so there is useful, detailed business to discuss.

[Lord Hunt of Kings Heath]

My Lords, this is ridiculous. Noble Lords know that the Government should have made a business statement at 8.30 pm to adjourn the House and allow the consequences of this to be fully considered by the Government and Opposition, and through the usual channels. It would have been helpful to have known earlier from the Chief Whip that Amendment 31 had been accepted as consequential. Clearly that is an important factor.

This is nonsensical. I am tempted to move the adjournment of the House. I plead with the Government at least to let us adjourn for 10 minutes to allow the usual channels to have a further discussion. I can see that I would win a vote on a show of hands. Surely the Government have the good sense to see this. Why are we going to waste an hour debating a theoretical amendment? It is ludicrous.

[Lord Carlile of Berriew]

My Lords, there are a number of problems with Amendment 31. The first is that we have not debated it yet. We have not agreed it. Logically, if we are to have a structured debate, it should start with Amendment 31. The problem is that we would be debating Amendment 1 all over again.

[Lord De Mauley]

Following the advice of the noble Lord opposite, I beg to move that the Committee do now adjourn during pleasure until 9.10 pm.

--- Later in debate ---

[Lord Soley]

I am not very confident of my knowledge of the procedures when we get into a situation like this. I simply say to the Government—and I recognise that I probably would not be their first choice as a political adviser—that there are aspects of the Bill which we could deal with very effectively and get through; for example, on drugs and alcohol. I am at a loss to understand why the Government do not proceed with that, leaving aside the policing bit for the moment while they decide a policy. The provisions on drugs and alcohol will get a lot of support. The Government could be well advised, politically, to split off the policing aspect so that they can take their time on it, and they would get a very good Bill on drugs and alcohol which I think we would all welcome.

[Lord Carlile of Berriew]

My Lords, having heard the Leader of the House speaking earlier, I can see no reason why we should not start to debate Clause 2 of the Bill and everything that follows. It is merely Clause 1 that causes the difficulties. I urge the Government Front Bench, whom, I repeat, I broadly support on this Bill, to consider whether we might move to Clause 2 and invite those who wish to move amendments to Clause 1 not to move them at this stage.

[Lord Harris of Haringey]

My Lords, the noble Lord, Lord Carlile, is trying to be helpful to the Committee. His analysis that it is difficult for us to debate anything in the Bill that relates to police and crime commissioners until a way forward has been determined is helpful. Clearly, Clause 2 does not contain anything at the moment about police and crime commissioners and there are a number of other clauses in the first part of the Bill, including Clauses 3 and 4, that do not relate to police and crime commissioners. So we could with due determination proceed with the Bill with those bits that are not affected by the decision that the Committee took earlier on.

However, there is one further difficulty and I would be grateful for the Leader of the House’s guidance on this point. We were told that the target for tonight was the group beginning Amendment 15. I suspect that a number of noble Lords worked on the basis that government targets on such matters are rarely achieved let alone surpassed. They might have wished to speak about amendments or issues subsequent to Amendment 15 but have left and would not be particularly happy if we were to proceed beyond that point without notice. Speaking for myself, I am always happy to talk on those matters that I have put down. However, it is unfair on those Members of the Committee who may have left on the assumption that the Government’s target—they are, as I said, rarely exceeded—was to reach the group beginning Amendment 15.

This process is enormously unhelpful, although I am sure that she can speak for herself, to the noble Baroness, Lady Hamwee. She has an amendment about transitional arrangements. There is a useful debate to be had about transitional arrangements—whether it should be for a year, which I think is the substance of her argument, or whether it should be for a shorter period and how it operates. But it is difficult to understand how we can debate a transitional arrangement when we do not know what transition we are making and from what state to what state. If, for example, a very simple matter were being proposed, a transitional arrangement of a year might seem excessive. However, if a more complicated change were proposed, a transitional arrangement of a year might seem appropriate.

We are in a difficult position and the Government Front Bench has put the noble Baroness in a very difficult position by encouraging her to move her amendment when we do not know what that transition will be. If, for example, the Committee were to decide that this is all getting silly and that we should stop, I would be sorry that the substance of debating transitional arrangements should then be lost. But I do not see how the Committee can debate transitional arrangements when we are not even in a position to judge what state we are in transition from and to what future state we are aiming.

The government Front Bench must help the House and find a way out of this terribly difficult impasse. I appreciate that they might have one or two slightly bigger consequences of today's vote on their minds, but we are in a difficult situation tonight. It would be better for us to have some proper time for reflection and for the Government to have time for reflection so that they can let us know how to proceed.