European Union (Withdrawal) Bill

Lord Dykes Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Baroness Young of Old Scone]

I shall no doubt see the noble Lord, Lord Forsyth, on this matter at a later point because, in fact, the folklore around that decision is wide of the mark. This is not the time or the place, but I am sure the noble Lord, Lord Smith, and I will be able to see him afterwards.

We really need the principles and the watchdog in place so that, on Brexit day, we have public bodies that are following the principles, courts that are applying the principles, and the public are able to rely on the watchdog to have a voice on the environment. This Bill is the only opportunity that will deliver that on time, so the way the Government deal with this now is the ultimate test of whether they really are truly committed to maintaining equivalence in environmental protection post Brexit. I hope the Government will stand up and meet this test.

[Lord Dykes (CB)]

My Lords, I add my thanks to the noble Lord, Lord Krebs, and the others who have their name to this amendment for their speeches and suggestions. I entirely agree with them and also with the words of the noble Lord, Lord Smith, who was in that prominent position himself at the Environment Agency. I personally felt very surprised at the rather over-robust outburst from the noble Lord, Lord Framlingham, about the whole purpose of this amendment and indeed the nature of the Bill itself. The noble Lord, Lord Deben, emphasised earlier the ecumenical nature of the formulations that have come out of this very serious and deep study made by many people, including the Government.

[Lord Framlingham]

My Lords—

[The Countess of Mar]

My Lords, may I remind the noble Lord that procedure at Third Reading is the same as for Report, and the noble Lord has already spoken? If he wishes to ask a question, he can ask for the leave of the House beforehand.

[Lord Dykes]

I was going on to emphasise, once again, the ecumenical nature of this whole process, and the tribute paid by the noble Lord, Lord Deben, and others to what the Government have done in response. I am grateful to the briefing note that was given by the Repeal Bill Alliance, which represents so many widespread different bodies, that it is necessary to get the guarantee and the certainty in the text of the Bill. I agree with the alliance when it says:

“The original drafting of the bill leaves gaps in environmental protections by excluding vital environmental principles such as the ‘polluter pays’ and ‘precautionary principles’ as well as EU directives that include environmental safeguards and obligations”.


Is it a preposterous idea that the Lords should propose serious amendments to a Bill and send them to the Commons, asking it to consider them, even on Third Reading? I think that is quite a normal part of the process of the parliamentary interchange between the Houses. It is up to the Commons to decide how to react. The reality, as we know, is that the Commons does not react in the open and free way that it would if it were on the basis of free votes in all parts of the House. Because of the magic mechanism of the only constitutional safeguard we have—the three-line Whip—the Conservative MPs would end up either having to do that or to become rebels themselves, which is always a difficult thing.

So when the noble Lord, Lord Framlingham, said that he was representing wider interests, I disagree. He was representing the salient interest of the Brexit lobby of the divided and broken Conservative Party in the Commons. Therefore, it is very important for us to remember—I quote from the press on 10 May:

“The cliché that the war is over because the eurosceptics have won is wrong. Brexit has created another divide between those evangelical about the UK going it alone and those that know such visions are fantastical. Every now and again May indicates she is in the latter group. There are some like John Major who is urgently aware from his experience that either way the UK is heading for the cliff’s edge”.


That means that the logic of what the Lords does is justified; it is nothing to do with party politics.

[Baroness Byford (Con)]

My Lords, this is an important amendment. At various stages, I have spoken very strongly in favour of environmental protection. Whether or not noble Lords agree with my conclusion is up to them, but it is very important that the House be aware that I am absolutely 100% in favour of protecting the environment.

I have a difficulty with the amendment before us. Had the Government not brought forward their consultation document, I would be repeating many of the things that have been said. In fairness, however, they have, and I think there are things we can do in the future better than we have done them in the past. I have listed a number of bodies that are either directly or indirectly affected by things to do with the environment. My question to the House at the end of the day is, could we do it in a simpler way and better way, and is not this consultation document exactly what Brexit is about?

With the leave of the House, therefore, I will talk about existing bodies that have some say on the environment. We have the Commons EFRA Committee and the Commons Environmental Audit Committee; the Lords EU Energy and Environment Sub-Committee; the Lords Select Committee on the Natural Environment and Rural Communities Act 2006, which we have just debated; the National Audit Office; the Natural Capital Committee; the Joint Nature Conservation Committee; a committee on climate change, for which my noble friend Lord Deben has done so much; the Environment Agency; Natural England; the Rural Payments Agency—I am not so sure there—and the many groups and charities dealing with wildlife and conservation. We now have the opportunity of a consultation document—and I wonder how many people who have spoken have actually read right through it; I plead guilty to having read right through it—and we are promised that, in the autumn of this year, a Bill will come forward.

Therefore, I ask myself and other noble Lords: are our present arrangements doing what we want them to do? I would be shaking my head and saying, “I think that we can do it better”. We have had an overlapping of many of the organisations, and a waste of money and time. I encourage Members of your Lordships’ House to at least consider what is in here, and for those who think that there is not enough in here, this is our opportunity to do something about it.

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[Lord Duncan of Springbank]

I thank my noble friend Lord Lansley for that helpful intervention. He is, of course, absolutely right that the judgment did draw upon an aspect of Article 168, but of course the principal driver was not the EU component; that was rather a contributing component and as such it will be available as a contributing component going forward. The second point my noble friend raises is an important one and I hope it will permeate much of the discussion we have had and will continue to have. There needs to be ongoing collaboration with our colleagues and friends in the EU; that must continue. We must learn lessons where we can, not just from the EU but more broadly. I would like to think, again, that where good ideas emerge in the wider world of public health we grab hold of them, take them to heart and move forward on that basis.

[Lord Dykes]

Bearing in mind that Clause 4 as amended has clear definitions of the protections that were required in the amendment, would it not therefore be possible for the Government kindly to consider reinforcing the certainty and security of the assertions by including the text, or perhaps a revised, shortened version of the text, in the new Clause 5? It would go in the Bill as subsection (1), paragraph (c) to the amended Clause 4. Would that not be a very convenient way of combining two certainties to reassure the public?

[Lord Duncan of Springbank]

I always welcome interventions of this nature. On this occasion I think that the Government position is clear—I hope so as I look to the noble Baroness—and provides the necessary and useful support and words of comfort. I think that on that basis it should be understood by all who read today’s remarks and engage directly with the Government on this matter that what they are seeking is provided for and will be available: as it is today, so shall it be after Brexit day. I hope that those words are of comfort to the noble Baroness on this occasion.

European Union (Withdrawal) Bill

Lord Dykes Excerpts

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

[Lord Cormack (Con)]

My Lords, I will be equally brief and will make just one point. When I had the honour to serve on the EU Home Affairs Sub-Committee of the European Union Committee of your Lordships’ House—something that was brought to an abrupt conclusion when I voted for those two amendments on the Article 50 Bill last year—I remember vividly one particular evidence session. Those giving evidence were led by a notable citizen of the United Kingdom, Mr Rob Wainwright, who was the head of Europol. Everything he said throughout his evidence to our committee made it abundantly plain that, if our security and our relations on the police front were to be maintained, we had to have a solution that as closely as possible replicated what we already enjoy. That is why I strongly support the amendment, which was admirably moved by the right reverend Prelate and spoken to by the noble Lord, Lord Haskel, and my noble friend Lady McIntosh. They have made equally valid points, but at the end of the day what is fundamental to our country’s survival is adequate and proper security and the proper interchange of information throughout the 28 nations of the European Union as it is now. We are leaving, but in doing so we must not jeopardise in any way the security of our people. That is why I strongly support this amendment.

[Lord Dykes (CB)]

My Lords, I will briefly support what the noble Lord, Lord Cormack, said, and also thank the right reverend Prelate for his able speech, which was strongly reinforcing as regards our gradually becoming ever closer to the European Union itself. That is the reality of these matters, because although the noble Lord, Lord Cormack, wishes to say on behalf of others on his Benches as well that we are leaving, there is now in this country a firm feeling of second thoughts on that matter, and therefore we may not be leaving.

In the meantime, the Prime Minister herself has got closer and closer to the EU in terms of various different parts of our linkages, in particular in respect to the agencies, and in terms of some of the procedures and laws. The strongest one, apart from Europol, which is a good example, is the European arrest warrant part of that security procedure, which is increasingly regarded as an incredibly indispensable instrument of suitable control between the justice systems of the member states, and so on—we had the recent example in Spain of something that was widely welcomed in this country.

With a number of agencies, if we were to relinquish membership of them—or even “almost membership”, however close that might be to them—that would be damaging not only to individuals who are involved in them but to the recipients of those services and the security of the high standards maintained. As we go on with this torturous process—we will see it again with the revival of the discussions about the EEA, the customs union, and so on in later amendments—we realise now that our closeness to the EU is a reality and not just an aspiration.

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[Viscount Hailsham]

My Lords, I have often been in agreement with the noble Lord, Lord Wigley, in the course of these debates but I hope that he will forgive me on this occasion if I do not go with him. I wholly agree with the underlying sentiments that he has expressed; my concern is with the word “objective” because it is very difficult to define at any one time what an objective truly is. Some are stated and some are unstated—and even if stated, they may not represent the true state of mind of the person making the statement. The problem with an amendment of this kind is that it is capable of giving rise to litigation. I just do not see how a court could ever seriously determine whether the objective of a Government at any one time was sufficiently truly stated to give rise to the remedy which I know will be sought by the litigants. With the greatest respect to the noble Lord, although I agree strongly with his underlying sentiments, I do not think this is the way to achieve that objective.

[Lord Dykes]

My Lords, notwithstanding the very reasonable sentiments just expressed by the noble Viscount, Lord Hailsham, I think that I would be among others in paying tribute to the noble Lord, Lord Wigley, for the way in which he has taken the initiative on this subject. It is becoming increasingly complicated with the approach of the so-called exit day—whatever date that may be in legislation and so on—and, therefore, we need to think very carefully about this. Although this was a long time ago, I recall that the Maastricht treaty bestowed on citizens of each member state individual citizenship as EU citizens, too. It was a solemn and profound moment when that was announced many years ago in 1992, and it was made much of, mostly in the other member states but also in Britain as well. A lot of British citizens who were working abroad were delighted at the idea of being citizens of the European Union as well, which added to their obvious practical freedom of movement, although that was not essential to it.

We have now got to be very careful to make sure that the Government respond to the civilised and reasonable request for them to expand their minds a little bit into thinking about this matter, because it will be quite complicated. There is the question of the Irish Republic’s offer, which has already been mentioned by the noble Lord, Lord Wigley, and the special status that may emerge in Northern Ireland, not deliberately, according to the DUP, but accidentally. It is not much to their liking that a special status would be accorded to people there and they would remain individuals citizens of the EU. Is this a matter of collective bestowal of citizenship because of the Maastricht treaty in 1992, or is it now a matter of it being an individual proclivity if the right was there, given that there are exceptions to the idea that you have to be within only one member state to be a citizen and you can apply for citizenship from outside? It therefore may be that the very act of applying for citizenship and continuing to have the protection of the ECJ as individuals because of the bestowal of European citizenship would need to be included in this wide examination. It is a very complicated matter and should not be excluded from people’s mind and, mostly, the Government’s mind. They may be very unwilling to consider these matters, but they need to do so and we are grateful for this amendment and this debate.

[Baroness Ludford]

My Lords, I thank the noble Lord, Lord Wigley, for continuing to champion this important cause, which is dear to the hearts of these Benches. There are several invidious features of this matter. First, it creates a division among United Kingdom citizens. Not only do people in Northern Ireland have the right to acquire Irish citizenship and thus EU citizenship, but many other British citizens have the right to, or are already pursuing, dual citizenship in order to get the passport of another country. I believe that I have the right to an Irish passport because my mother and my grandmother were born in Dublin. That creates two sets of British citizens: those with the additional political expression and practical advantages of EU citizenship and those who are unable to continue to enjoy them.

Another feature of this matter is hypocrisy. Do the noble Lord, Lord Wigley, and the Minister agree that the following is deeply hypocritical of the leading voices in Legatum? It is reported that the co-founder, who is of New Zealand extraction, and the chief executive have managed to acquire Maltese passports. How they have done so, I have no idea. That will give them EU citizenship, including the right of free movement. As advocates of the hardest of hard Brexits, they have had the ear, we believe, of many leading members of the Government. They have been pushing hard for Brexit so as to deprive the rest of us of EU citizenship, but they have made sure that they are feathering their own nest by obtaining citizenship of another EU member state and thus EU citizenship and free movement.

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[Lord Elton (Con)]

My Lords, I may be under a misapprehension, but I thought that the Question before the House was whether or not to agree Amendment 83A.

[Lord Dykes (CB)]

I follow the remarks of the noble Lord, Lord Cashman, and intervene briefly to thank the noble Lord, Lord Low, for Amendment 83A and the noble and learned Lord, Lord Wallace, for Amendment 83E, and both of them together for what they have said. I agree entirely with their remarks and thank the noble Lord, Lord Low, for his characteristically forensic analytical ability to go through all the points, with which I strongly agree, and the noble and learned Lord, Lord Wallace of Tankerness, for his remarks. This is an important matter, and, as the only speaker who is not a signatory to the amendments, I think it would be right if the Government gave a comprehensive answer. People are worried about the future of equalities legislation in this country. On the reference of the noble Lord, Lord Cashman, to the possibilities, there may be a case for primary legislation in future—a new, comprehensive Act—but that subject is separate from this amendment and debate.

[Lord Goldsmith]

My Lords, the amendments have been moved so powerfully and comprehensively by the noble Lord, Lord Low of Dalston, supported by the noble and learned Lord, Lord Wallace of Tankerness, and my noble friends Lady Lister of Burtersett and Lord Cashman that I do not want to spend much of the House’s time commenting on them. I just want to make a few points. First, I congratulate the noble Lord, Lord Low of Dalston, on the new advisory role that he mentioned—or, perhaps even more, the Equality and Human Rights Commission for taking him in that advisory role. That will be very valuable for the commission.

Secondly, I very much support what the noble and learned Lord, Lord Wallace of Tankerness, said about the benefit of statements that Ministers have to make; that focuses their minds on what they are doing. I know from my own experience that that is a valuable example from the Human Rights Act, and I have no doubt that it will be very useful here.

Thirdly, on the point made by my noble friend Lord Cashman, we are talking not about preventing amendments being made to the level of protection, but preventing them being made through delegated legislation without considerably more care and scrutiny. That takes me to my final point. Amendment 11, which has already been referred to, moved by my noble friend Lady Hayter of Kentish Town, will be doing exactly that. It is a very important amendment that was accepted in your Lordships’ House. It will be one of the ways in which the very important continuing protection for equality may be maintained.

I support the amendment and look forward to hearing what the Minister says in opposition.

European Union (Withdrawal) Bill

Lord Dykes Excerpts

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

[Lord Rooker (Lab)]

My Lords, I do not think it should go unremarked in this short debate, where there is a Northern Ireland connection, that in neither House of this Parliament are there any representatives of the nationalist community and yet, in this House, we have members of the DUP who never, ever give a view. They claim to represent the majority in Northern Ireland—the leader today has threatened the Prime Minister, if she deviates, with deselection—but, at the same time, there is something wrong with the debate, because we are not fully representative. Why do we have these people in this House who never give a view, and yet their views are important? I just think it is worth putting this on the record.

[Lord Dykes (CB)]

I am very glad that the noble Lord, Lord Rooker, has made that point, because it is noticed and it is not said enough that there is a gap there which really makes the Chamber awkward from the point of view of these issues. I also support what my noble friend Lord Cormack said and thank the noble Baroness, Lady Kennedy of The Shaws, for raising these matters. It will be quite alarming if there is an erosion of the common travel area arrangements, which are historic since 1923, just because other things are happening in a geopolitical sense regarding new legislation for leaving the European Union. The psychological aspect is important too, because creating that common travel area so long ago, as a unique and special example of co-operation between countries, was a way for the British to make up to the Irish for what had happened in the past and, as the noble Baroness, Lady Kennedy, said, a way of promoting economic co-operation and activity. People came towards Britain, mostly, rather than the other way round, but increasingly, as the Irish economy developed in the post-war period, people also went to Ireland for work and travel.

The present situation is that there should literally be no erosion or changes; it should be exactly as it was. Yet, one hears these stories of what is happening—the wrong kind of attitude on the part of certain officials, and so on; I will not go into more detail than that. This arrangement is very important, because it is a miniature Schengen between just two countries and, partly for that reason of course, both countries decided not to join in the full Schengen arrangements, although there were also other reasons connected at the margin. It is a very precious aspect of the wider picture of there being no change at all to the Irish border arrangements, which is so important for both this legislation and the future of our relationship with the European Union. This of course means, effectively—yes, we have to say it—staying in the single market and customs union, and why not? In the meantime, this arrangement is crucial and I hope that the Government will reassure us tonight that there is a commitment to keeping the purity of the CTA and that there will be no erosion.

[Baroness Smith of Basildon]

My Lords, there is little I can add that is new to this debate. I am grateful to my noble friend Lady Kennedy of The Shaws for raising these issues and I hope the Minister will make use of his customary courtesy to the House. When he responded at Second Reading and in Committee on these issues, there was a sense that he understands the concerns that were raised then, and indeed the issues raised today. When he spoke on 14 March, he was clear that there will be no impediment at the land border to the movement of people—no checks and no profiling, full stop. That was the first time that the Government had given that degree of clarity—I think my noble friend Lady Kennedy would recognise that—or sought to emphasise that. This is important, and the Minister will understand the great concerns being raised. We still have no clarity on the border issue. This House has already expressed a view on the customs union and I am sure that, as we debate Northern Ireland issues later on Report, we will deal with those further.

I hope that the Minister is able to address the concerns that have been raised about the common travel area and movement of people. He has a sense of deftness and understands these issues, so if he can address them today we would be grateful.

Brexit: European Council and Commission

Lord Dykes Excerpts

Tuesday 27th March 2018 Lords Chamber

Asked by

[Lord Dykes]

To ask Her Majesty’s Government what response they have given to the most recent submissions from the European Council and Commission on the Brexit negotiations.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, the European Union published a draft withdrawal agreement text as part of our ongoing negotiations under Article 50. We have made significant progress towards concluding much of the withdrawal agreement by agreeing the chapters on financial settlement and citizens’ rights, in line with the joint report, as well as the terms of a time-limited implementation period. We will carry this momentum forward and aim to reach agreement on the entire withdrawal agreement by October.

[Lord Dykes (CB)]

I thank the Minister for that Answer. How long will the Government need to renegotiate the existing trade agreements with non-members who have trade agreements with the European Union as a whole? Will the 21 months of the transition period be enough?

[Lord Callanan]

We are pursuing many of these multilateral agreements in a whole range of areas, including trade agreements, and we are confident that we have enough time to complete those negotiations.

European Union (Withdrawal) Bill

Lord Dykes Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Dykes (CB)]

In that conjunction of events and facts, was the noble Lord, like colleagues in the other place, disconcerted by the very aggressive and jingoistic references to Spain that were made by some people there—unnecessarily so, because there was no question of the UK abandoning its total support for Gibraltar? The tone adopted on Spain was really rather unacceptable, including by some Members of this House. I think I remember the noble Lord, Lord Howard of Lympne, saying we might have to go to war with Spain, and even Daniel Hannan, a right-wing Tory MEP, refuted that. Does the noble Lord, particularly because he has declared his interest of a Spanish husband, which was a very interesting point, feel that the balance was right or that there should have been more intelligent access to the ideas of Spain, bearing in mind the pressures that it has over Catalonia?

[Lord Collins of Highbury]

To be clear, the Opposition believe—as do I personally, as someone who has worked in Gibraltar over the years—that the position of Gibraltar should be a matter for the Gibraltarians. There should be no doubt about that, and we are committed to it. They have had a referendum and we will completely stick to that.

I was about to come on to my comments relating to what the noble Lord, Lord Luce, said. At the end of the day, we want to ensure that we make economic relationships and economic development a high priority. I do not think we should restrict this to comments about the viability of Gibraltar; we should be focused on how we can support a friendly country in developing an economy in the south that has been so difficult to establish over many years. British tourism has been very important to that, but it is also in terms of new industries and finance sectors that could be expanded and developed. I like the proposal by the noble Lord, Lord Luce, that we should be talking positively about economic development in relation to Gibraltar and to how important that is.

To be frank, we cannot rely on Madrid. We should understand the nature of the Spanish psyche here: no matter what the terms of the Treaty of Utrecht were, there is a claim by the Spanish nation over sovereignty and, whichever political party is in power in Spain, socialist or conservative, this issue unites them across the political spectrum. I do not think we are going to resolve that—we cannot tell the Spanish what their views should be—but we can give very clear commitments to Gibraltar and its people, and we should maintain those commitments. What we need to hear from the Minister today is that it is not simply about commitments regarding Gibraltar’s relationships with the UK but that the Government are committed to ensuring that Gibraltar can have a positive economic relationship with the rest of the EU, and that in any final appendix or agreement to the transitional period Gibraltar’s needs are properly considered and there is a positive case. Not only would closing the border be a disaster for Gibraltar but, as people have said in this debate, it would be an incredible cost to this country as well.

In the 1960s we had a very big MoD base in Gibraltar and there was employment. That is not the case any more. It is a different sort of industry and employment that we have to address.

Will the Minister answer the question of the noble Lord, Lord Hannay, about what is next under the transitional agreement? What will Gibraltar’s relationship economically be with the rest of the EU? To take up the point made by the noble Lord, Lord Luce, what commitments will we give for a positive relationship with Spain to ensure the economic future of Gibraltar and its people, and the people of Andalusia?

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[Lord Wallace of Saltaire (LD)]

My Lords, I very strongly support these amendments. I stress that we are locking ourselves into leaving the European Union on a specific timetable which is coming up very soon, given that nothing much will happen in the summer and that it will take some time to get ratified whatever interim withdrawal agreement is agreed by this October. We are up against a very short deadline. The reasons why this is a mistake include that the Government lost a great deal of time unnecessarily in negotiations within government and the Cabinet, and with their own right wing, before they got down to the detail of the negotiations to which they are now committed.

As the Government negotiate, we are discovering a substantial shift of tone. The Prime Minister’s Mansion House speech made it clear that she wants to stay associated with a very large number of European Union agencies. There is talk of a large and ambitious new security treaty between the UK and the European Union, and Commons committees and committees of this House have said that it is absolutely in Britain’s interests that we remain associated with Europol, data sharing and a whole host of other things which only EU membership gives us.

[Lord Dykes]

Is the situation not actually worse than that? The noble Lord referred to the Government’s position after the election but, of course, I am sure he would agree that the Government completely lost their mandate to pursue these negotiations anyway in that election result, due to the effect of the result coupled with a dodgy alliance with the DUP. Does he agree?

[Lord Wallace of Saltaire]

I am not sure I would say that the Government completely lost their mandate. They emerged from the election a good deal weaker than they were before. Unfortunately, I am not sure that anyone else had a mandate at the end of it, either. I give way to my noble friend, I should say.

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I say to my noble friend on the Front Bench that this amendment seeks to remove yet another self-imposed fetter on our ability to operate in the interests of the country. We have heard that this arbitrary date was added, and we all know the reasons for it. However, the interests of people whose main interest appears to be our exit in almost any circumstances, however disastrous, must not be allowed to determine what is in the Bill. If the date is removed, it will give the Government the flexibility that they constantly claim they want in these matters. It does not threaten the Bill and it is not designed to thwart the will of the people but to ensure that the Government may act in the best interests of the country and the people rather than the interests of a small number of anti-EU ideologues.

[Lord Dykes]

My Lords, I will briefly add words of support for this bunch of amendments. It is no surprise that there is a large collection of amendments on this subject, because of the importance of making sure that there is flexibility on the date. In that context, I also particularly commend the last amendment on the list, which contains the proposed new clause tabled by the noble Viscount, Lord Hailsham, in considerable detail, and particularly the possible linkage between the decisions of the House of Lords and those of the House of Commons in proposed subsections (5) and (6) of that new clause. I welcome proposed subsection (2), which states:

“A motion for a resolution for the purposes of this section may be made in the House of Commons only if … 150 Members of the House of Commons are signatories of the motion”.


I agree with those who keep saying in these debates, but particularly in this one, not just on the date, that because so much of the content of the negotiations has been different from what we expected—not least, for instance, the proposed adhesion of the Government to a number of important EU agencies, and a number of other things—and because of the scope and nature of the transitional period, which certainly was not anticipated as such in the way it has now materialised, once we know the detailed outcomes of the negotiation we should as a Parliament be entitled to have the final say, which of course also means rejecting it if it is an impossible deal. I very much agree with the powerful words of the noble Viscount, Lord Hailsham, who said that the whole thing is a national tragedy anyway, and one has to keep saying that in the background. I know that the Bill deals with the technicalities, but it is important to repeat that thought as an ominous forewarning of what will happen when these difficult decisions are made. After all, we remind ourselves that the 2016 referendum was a judgment on a Government as if in an election, but without knowing what the Opposition were suggesting, and the Opposition have gradually made more suggestions as time has gone on.

The whole atmosphere and background and the detailed content thereof in British politics have changed enormously as time has gone on. That therefore affects the flexibility on the date, and the Government need to be laying out all the options as time goes on from now on. I have little confidence that they will be able to do that successfully, therefore we have to stick to our last on this matter of insisting that, with its renewed sovereignty, Parliament—which decided on the Second World War, joining NATO, having the atom bomb and the UN, all of which happened without referendums—insists on a proper flexibility on time.

[Viscount Ridley (Con)]

It seems from what the noble Lord is saying that the purpose behind these amendments is to keep open the possibility of preventing or reversing Brexit, which is very different from the purpose that my noble friend Lord Tugendhat outlined, of getting a better deal for Brexit. Will he clarify that difference?

[Lord Dykes]

All the amendments are designed, rather like the noble Lord, Lord Tugendhat, inferred, to improve the technicalities of the Bill, despite people having different views on our future membership or not of the European Union. There may be a stronger content in, for example, some of the suggestions made by the noble Viscount, Lord Hailsham, which I fully support, but that is perhaps the only such example in that cluster.

[Lord Cormack]

My Lords, I have one simple message: do not tie the hands of those negotiating on your behalf.

European Union (Withdrawal) Bill

Lord Dykes Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness McDonagh]

I thank the Minister and say to the whole Committee that I am willing to read out anyone’s speech should they come and ask me to do so. I say to the Minister that the problem is that I would answer the questions that Ministers put before me.

This morning, my noble friend Lord Reid of Cardowan used the word “preposterous”. That is the position we are now getting ourselves into. On one level, it really worries me that Amendments 151 and 199 needed to be tabled. It seemed completely preposterous that Parliament and the Government could get themselves into a position whereby the Government negotiate a deal, take it to the European Parliament, leave the EU and then bring the deal back to Parliament. That seems to involve all the conditions of creating a constitutional crisis. By tabling this range of amendments—specifically Amendments 151 and 199—this House is properly conducting its business of scrutinising the legislation and ensuring that it makes sense.

I do not want to repeat this morning’s speeches by the noble Lords, Lord Cormack, Lord Balfe and Lord Patten, the noble Viscount, Lord Hailsham, and my noble friends Lord Reid and Lord Liddle. Instead, I have a question for the Minister and I still hope he will be able to rise to his feet and say that the Government accept Amendments 151 and 199, but if he is unable to do so, could he please explain how Amendment 7, passed in the other place, can be implemented in a meaningful way?

[Lord Dykes (CB)]

My Lords, I will speak briefly mainly to Amendment 216, tabled by the noble Viscount, Lord Hailsham, which I also signed, but I will also refer briefly to Clause 9 and its generality.

On the recent exchanges, I may be incorrect, but speaking from a shaky procedural memory, the noble Lord, Lord Forsyth, was probably correct in what he said: the procedure that the noble Baroness opposite engaged in is unusual, although I understand that she had the permission of the House to do so. It was perhaps an exceptional moment, and noble Lords may agree, particularly in Committee rather than the whole House, that it is not necessarily a transgression. However, I think a law somewhere in the procedure book says that what the noble Lord, Lord Forsyth, asserted is correct. Be that as it may, I pass on to the important matters of Clause 9 and Amendment 216.

--- Later in debate ---

[Lord Adonis]

I entirely agree with my noble friend.

[Lord Dykes]

I have just a brief point on the previous remark of the noble Lord, Lord Adonis. Does he not agree that the great essence of membership of the European Union is that it is a club of equal sovereign members? Can he briefly explain why he thinks the United Kingdom is the only member that has lost the self-confidence and maturity to deem itself an equal sovereign member, like all of the others?

European Union (Withdrawal) Bill

Lord Dykes Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Callanan]

If the noble Lord will forgive me, I will use the words as I have said them. These issues are matters for negotiation, so we will use the word “may” instead of “will”. Obviously, we cannot impose our will on our negotiating partners. The UK will explore the options with the EU as part of the negotiations on the future relationship.

Perhaps I may use this opportunity to respond to the question put by the noble Lord, Lord Adonis, on agencies. I think that I indicated to him during the debate that the list issued by the Prime Minister was not necessarily an exclusive one and that we are considering carefully a range of options. Where there is a demonstrable national interest in pursuing a continued relationship with an agency or other EU body, the Government will carefully consider whether we should pursue it, at which point of course it will be a matter for the negotiations. We will continue to update noble Lords on our negotiations, subject to the usual caveat of not undermining our negotiating position.

Amendment 227BC seeks to make it an objective of the Government to achieve a particular outcome in the negotiations on our future relationship with the EIB. It is important that the Government should maintain negotiating flexibility in this and all other areas in order to achieve the best deal for the UK. However, as I said, we have not discounted maintaining some form of ongoing relationship, if that supports an overall deal. I hope that that will be sufficient for the noble Lord not to press his amendment.

Amendments 183 and 187 would require the Chancellor of the Exchequer to publish a strategy for retaining access to the EIB and the EIF. As Parliament has agreed, we will not publish anything that would undermine our ability to negotiate the best deal for the United Kingdom. Any information on potential economic considerations and negotiating strategy is important to the negotiating capital of all parties. Publishing a statement from the Chancellor setting out the strategy for retaining access to the EIB and its subsidiary, the EIF, will ultimately harm our negotiating position. However, as I said in response to Amendment 227BC, I can assure the Committee that we have not discounted maintaining some form of ongoing relationship with the EIB group if that proves to be part of the best overall deal for the UK.

The noble Baroness, Lady Kramer, asked about the British Business Bank.

[Lord Dykes (CB)]

Can the Minister explain, distinctly and clearly, to the Committee the distinction between demonstrable national interests and the national interest adjudicated by Jacob Rees-Mogg, Bill Cash and others?

[Lord Callanan]

We are having a serious debate about the EIB. The noble Lord is demeaning the subject before the House.

The British Business Bank has already raised the limit on the amount that it can invest in venture capital funds from 33% to 50%. It has also brought forward the £400 million of additional investment that was announced in the Autumn Statement. As a result, we expect it to have doubled its investment in venture capital this financial year. We have also broadened the range of the UK guarantee scheme by offering construction guarantees for the first time. I hope that that addresses the noble Baroness’s question.

European Union (Withdrawal) Bill

Lord Dykes Excerpts

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

[Lord Campbell of Pittenweem (LD)]

My Lords, the noble Lord, Lord Wilson, said that it was 50 years since he had practised as a lawyer. Perhaps I may observe to him, once a lawyer, always a lawyer—and he certainly demonstrated that in the way in which he introduced this amendment. The effect of the statute before us is to provide an unfettered discretion, and we should be extremely slow to provide unfettered discretions to anyone. You would not give an unfettered discretion to the captain of a golf club. The idea that we will give 109 Ministers an unfettered discretion seems to me to fly in the face of all constitutional propriety.

It is not even the Secretary of State who is asked to exercise these powers. That frequently appears in statutes where a power is afforded. In this case it is any Minister of the Crown—and, added to that, public authorities, as widely defined. It is difficult to imagine public authorities understanding the whole question of discretion, as we see time and again in the courts when judicial review is successfully taken against local authorities, for example. As the noble Viscount, Lord Hailsham, pointed out a moment or two ago, if you have the power to make by regulation such provision as you consider appropriate, the prospects of judicial review are nil. There will be no review because, in any circumstance where a subjective test has been imposed or offered to the Minister, there can be no challenge. Necessity, on the other hand, is capable of challenge and leaves open the whole question of judicial review where the test of reasonableness arises in the course of the action—in this case of a Minister, or indeed of any of these public authorities.

When the bus with “£350 million a week” was going around the country, and when those who emerged from it, including the blonde bus conductor, told people, “We want to take power back from the European Union and Brussels”, no one said, “We want to take power back so we can give it to 109 Ministers or public authorities”. If they had said that, I rather fancy that the bus would not have received the generous welcome that it did on many occasions.

[Lord Dykes (CB)]

My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, all saying similar things, and I entirely concur with what was said. Therefore, I can be very brief. First, I thank my noble friend Lord Wilson for his remarks. I apologise to him for missing the first minute and a half of his speech because I naively thought that two government Statements would last a bit longer than they did; they were very brief indeed. I surmise that my noble friend referred to my noble friend Lord Lisvane, a very good friend to many of us. I assume he is on onerous public duties in Herefordshire. Sadly, the noble Lord, Lord Tyler, cannot be present due to illness. Therefore, two sponsors of the amendment are sadly unable to be here but that in no way weakens the strength of this message for the Government. I hope the Ministers on the Front Bench will listen very carefully to these words.

It is also worth noting that, apart from a later big grouping, this group contains the largest number of amendments of any group since the Committee proceedings began. This is the subject that most exercises the Members of this Committee and, I think too, quite a number of MPs although they are sometimes under much greater pressure for obvious reasons not to say too much about it.

I was very struck by what the noble Lord, Lord Sharkey, said and by what he said representing the noble Lord, Lord Tyler. Since I am an amateur and not an expert on these matters, I was impressed by the comments of the Bar Council on its worries about these matters. In paragraph 60 of its general statement, it said:

“Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) includes an open-ended power to make ‘any provision that could be made by Act of Parliament’. There are comparable Henry VIII powers in Clauses 8(2) (in respect of regulations to ‘prevent or remedy’ any breach, arising from Brexit, of the UK’s international obligations”.


It went on to say in paragraph 61:

“We consider that these provisions (and in particular Clause 7) continue to raise serious concerns both from the perspective of the rule of law and the sovereignty of Parliament and in respect of legal certainty”,


which we sometimes forget. By the way, as the sunset clause possibilities in Clause 8 have been mentioned by at least one speaker, in paragraph 67, the Bar Council adds:

“While we recognise that the Henry VIII power in all three clauses (7-9) is subject to sunset provisions, we do not think that this is sufficient to address the above concerns. As noted in the introduction to this paper, the operation of the amending powers and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period or under the Withdrawal Agreement”.


I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment. I anticipate a major expression of unease, to put it mildly, when Report stage comes along. I hope and pray that will be so, and we look forward to the Minister speaking in the framework of that need to assuage our anxiety when he comes to reply.

[Viscount Hailsham]

My Lords, I rise to speak primarily —subject to pre-emption, whatever that means—to Amendments 73 to 79 and Amendments 117 to 119, which are in my name.

I think we ought to start the debate—although we have started it already—by reflecting on how very wide the powers contained in Clauses 7 to 9 are. They are powers exercised by regulation: mostly by the negative procedure, but some by the affirmative procedure. However—this is the critical point—in both instances, the regulations when laid cannot be amended. That raises an issue that I hope this House will come to on some subsequent occasion, because I have a number of amendments in my name on that very subject.

These powers are very wide-reaching. One way of ascertaining how significant they are—I hope the right reverend Prelate will forgive me if I use the word “significant” in this context—is to look at paragraph 2 of Schedule 7, which lists the provisions that can be made only by the affirmative procedure. I cite a few examples: the creation of a public authority and presumably the powers to be given to it; the transfer of legislative powers from an EU entity to a UK-based public authority; the levying of fees without specific limit, which I am sure noble Lords know we will come to later in Committee; the creation of criminal offences that attract a custodial sentence of up to two years, which, again, we will come to later in our debate; and the creation of powers to legislate or amend existing powers. These powers are not trivial in character. I have not sought to identify the various powers that could be exercised by way of the negative procedure, because their name is legion.

There is one fundamental rule in politics, which I have learned from 31 years in the House of Commons: if you give powers to Ministers and officials, those powers will be abused—sometimes by design and sometimes by inadvertence, but the abuse will happen and that is certain. It is especially so when the powers are created by secondary legislation because the parliamentary oversight is slight and ministerial oversight is often non-existent. So the question your Lordships should be asking—I agree with my noble friend Lord Lang that it is a pity more noble Lords are not asking themselves this question tonight—is whether the language in the Bill is sufficiently tightly drawn to prevent abuse. The answer to that question is manifest to all of us and all noble Lords who have spoken: no. The Bill does not prevent abuse; it enables abuse.

The powers given to Ministers are “appropriate”. That is a weasel word. Nobody is better placed than I to describe it as such. It is a subjective word, very difficult to define in advance, impossible to challenge and non-judicable. That is why, when I was a Minister, I used it often—at the Dispatch Box, in drafting and in correspondence. I knew full well, as does every person who has stood at the Dispatch Box, that “appropriate” means precisely what the Minister wants it to mean. The noble Lord, Lord Campbell, is quite right about that. Might I suggest the Corbyn/Johnson test to your Lordships? It is very useful. I look to my side of the House and ask, “How many of your Lordships want to see Mr Corbyn possessed of these powers?” I now turn to the other side of the House, lest noble Lords think I am being partisan, and ask, “How many of your Lordships want to see Mr Johnson possessed of these powers?” The joke is that you can reverse the question and get the same answer.

We should not allow the draft as it is. I accept that the distinction between “necessary” and “essential” is pretty minor. I can live perfectly well with the word “necessary”. “Essential” is one notch higher in the hierarchy of requirement but I accept that “necessity” has been hallowed by legislation in the past. I encounter that word frequently in regulatory law, and the noble Lord, Lord Campbell, was absolutely right to touch on the point of judicial review. If you use the word “necessary”, it makes things easier to challenge. There have been many appeals in the regulatory framework where the courts have held that the test has not been laid out.

I want to comment on two other amendments I have ventured to propose. Amendments 74 and 117 require the Minister to have “reasonable grounds” for his or her decision on the need to trigger the regulation-making powers. I will be open about this: my purpose is to tighten the test, to make it judicable and to limit the discretion. I would very much like to know from the Minister why he objects to the use of reasonable grounds as the criterion for exercising the power. I am sure he is not going to say that he wants to rely on unreasonable grounds; that is not, I think, an argument he would like to put forward. We are entitled to know the justification.

I have one very small point on Amendment 75, which includes a reference to redundancy. What does that reference add to what is already covered by the retained part of Clause 7(2)(a)? It comes to this: the main issue for this House is to require a test of necessity to be imported into these three clauses and elsewhere in the Bill where the Government want us to accept a lower threshold of need—or, more precisely, put no threshold at all. I regard this as matter of considerable importance and I want to know—as I am sure the Committee does—why the Government want us to prefer a word that gives the maximum discretion to Ministers, but the minimum control and influence to Parliament and the courts.

European Free Trade Association

Lord Dykes Excerpts

Tuesday 27th February 2018 Lords Chamber

[Lord Callanan]

I am slightly confused about what the Labour Party’s position is this week. Last week, they were against the customs union; this week, they seem in favour of it. Perhaps next week they will be in favour of a single market, then against it again the following week. I can say only that I agree with Barry Gardiner, their international trade spokesman, who said in another place that,

“in voting to leave the EU the British people voted to leave both the single market and the customs union”.—[Official Report, Commons, 5/9/16; col. 47-48WH.]

He then went on to write an article in the Guardian—a well-known journal of record—saying that retaining membership of a customs union would be “deeply unattractive” because it would stop us negotiating our own trade deals. He is supposed to be their trade spokesman.

[Lord Dykes (CB)]

My Lords, bearing in mind that more and more people now think that staying in the customs union is a very good idea—led by that subversive body, the CBI—what on earth will the Government say on Friday to reassure an increasingly desperate public?

[Lord Callanan]

I am sure that we all await with interest what the Prime Minister has to say in her speech on Friday, but the point about joining a customs union is a serious one. We are the fifth-largest economy in the world and the normal state of affairs in the rest of world is that large countries negotiate their own trading arrangements. It baffles me why people want to contract that out to the European Commission. We collect tariffs that we would then send to the European Commission; we would be totally in its control. Surely, if anything, the EU referendum means that we need to take back control in this country and do not want to contract out our trade policy to another organisation.

European Union (Withdrawal) Bill

Lord Dykes Excerpts

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

[Lord Dykes (CB)]

My Lords, I hope that I will not annoy any Members by deliberately putting myself out of order, particularly with the Treasury Front Bench, but I hope that the unusual incident at Question Time will none the less result in the noble Lord, Lord Bates, reconsidering his decision and remaining on the Front Bench. Apart from his invaluable merits, he is such a rare example of a popular Conservative Minister. Therefore, it is even more important for him to be retained on the Front Bench. I should not have made those remarks and apologise for having done so.

I thank the noble Lord, Lord Storey, very much for placing an emphasis on children—that is the first time that has occurred in this debate—rather than on the 16 and 17 year-olds who we always think about. It is such an important issue for the future of this country.

The issue we are discussing is not just a nightmare, it is the greatest tragedy to have faced our country in the whole post-war period. The Bill itself is yet another detailed reminder of the great tragedy unfolding before our very eyes. Like Ian McEwan, I find it hard to believe that we are not dreaming a nightmare—that it is not happening. But it is happening before our very eyes. While I defer to the huge assemblage of constitutional and procedural experts in our House, who I hope will guide us into safer territory on this truly miserable, but unfortunately necessary, Bill, I have no enthusiasm even for seeing its passage sustained and returned to the Commons, for it is part and parcel of the incompetent and selfish Government we have to endure for at least a bit longer, alas, under our clumsy system, where defiance of wisdom and common sense is now the daily government routine.

Our colleagues in other EU countries cannot believe that this is happening either. They think we have gone mad, and after the PM’s catastrophic blunder with “Brexit means Brexit,” for which she still has to ask forgiveness, the Government have no authority whatsoever for pursuing this insane course of action simply because she is scared to death of Boris Johnson and even—would you believe?—Jacob Rees-Mogg. She might have had a mandate before the last election, but the 8 June 2017 election result killed that stone dead. Above all, the Government’s main sin has been to ignore the needs and wishes of our precious younger generation, all for keeping a reactionary minority in their own parliamentary party in unstable nagging for a new order which is 100 years out of date. What a total, utter shambles.

The PM now goes off to China to avoid scrutiny at a bad time, when sensitive documents have been falsified and concealed, but more and more people in Britain now, at long last, realise that the whole farce is coming to a head in certain, painful inevitability. Meanwhile crushing, pressing domestic problems are ignored: a huge housing crisis, a crisis of poverty and inequality, a crisis of rough sleeping in unprecedented numbers, a crisis in our National Health Service—all ignored by this Prime Minister obsessed with only one subject, Brexit. This will be revealed when the trade part of negotiations resume after the European Council takes place in March.

In my recent PQ on trade deals to the Minister on the Front Bench, I asked if the exercise in total insanity of having to negotiate now up to 70 new agreements with countries which already have agreements with the EU will take place after 19 March. The answer was confirmed: “Yes, that is what will happen”. Indeed, it is not hard to imagine that the talks will eventually just peter out. It is actually possible that that will happen. In his excellent speech yesterday, the noble Lord, Lord Foulkes, reminded us chillingly that 19 months had already elapsed since the PM took over, and that only 13 months remained to the target date.

There is no need at all for the exasperated EU negotiator and his colleagues in the EC and the Council to seek to help us out of a crisis of our own creation, thanks to the handiwork of the most maladroit Prime Minister in the whole of post-war history. Meanwhile, the long-suffering British people are enduring the derision of the rest of the world, with the dodgy exception of the worst President in US history. Eyebrows are still raised here and in the EU about the artificial and pork-barrel opportunism of the immoral agreement, after a £1 billion bribe of taxpayers’ money, to the Northern Ireland DUP, an unsavoury bunch of extreme right-wing Protestant enforcers, led by an equally questionable First Minister.

I live in France as well, and in countries like that with a sensible framework for good governance and a written constitution, such a deal would probably have been deemed out of order by the council of state and maybe even the constitutional court.

[Lord Cormack (Con)]

My Lords—

[Lord Dykes]

I do not really want to give way, if my noble friend will forgive me, because of time. It would be unfair. I am concluding my remarks now. Oh, I give way.

[Lord Cormack]

Well, he is an old friend, but I just want to know where he picked up his very moderate vocabulary.

[Lord Dykes]

It is a circumstance of the urgency and the emergency in this country of this great and unfolding tragedy.

I appeal today, therefore, to the cowed bunch of pro-EU Tory MPs, for whom I have great respect, to find the strength to put country before party and save Britain, especially for the younger generation of our citizens, who are also citizens of the EU under Maastricht. They and others too, who are older, deserve better. They understand, like all the other member states, that individual sovereignty within the Union goes hand in hand with collective sovereignty. They are proud of the collective power that this gives each member state. Even small member states are proud of that combination of national and group sovereignty.

There is still time to reverse this utter madness. The Lords needs today to send out the crucial message of modernity and the future together. I came into politics as a humble helper of Edward Heath, who bravely took us into membership with the critical help of 68 Labour and other MPs. I pray that this time, too, the Labour Party from now on, led by Jeremy Corbyn and others, will rise to the occasion to save Britain when the time comes.