Further Discussions with the European Union under Article 50 of the Treaty on European Union

Debate between Lord Farmer and Lord Hannay of Chiswick

Wednesday 27th February 2019 Lords Chamber

[Lord Farmer (Con)]

My Lords, I feel rather lonely in this debate. I think that I am fairly well known for being a passionate leaver—a beast in the Brexit herd. Right now, I feel like an isolated wildebeest surrounded by a pride of noble lions, possibly about to be torn limb from limb.

We in Parliament need to lift our heads and see that the mood in the country is one of wanting to get this over the line. People want Parliament to deliver on what 17.4 million voted for, and are profoundly disappointed by the continuous party politicking and thwarting of our departure. It would reflect well on both Houses—and especially on this one, where courtesy is the currency—if the polarising language and behaviour were softened. Currently, anyone who dares to suggest that leaving on WTO terms would not be terminal for our future prosperity is treated with deeply discourteous contempt. Yet that represents a position held by many outside this House, who resent the vitriol that is, by extension, also being poured on them.

If the Prime Minister, who is being attacked from all positions, can be magnanimous, then so can we. Yesterday she acknowledged that:

“For some honourable and right honourable Members, taking the United Kingdom out of the European Union is the culmination of a long and sincerely fought campaign. For others, leaving the EU goes against much that they have stood for and fought for with equal sincerity for just as long. But Parliament gave the choice to the people”.—[Official Report, Commons, 27/2/19; col. 168.]


Yesterday in the other place she also made it clear that there is not just real determination in both the EU and UK Government camps to enable us to leave with a deal, but also tangible work to operationalise the concept of alternative arrangements for the border in Ireland. This would not be taken seriously by both sides if it were really the unicorn some scornfully dismiss it as. Scornful dismissal ignores the fact that MPs coalesced around this as an acceptable plan that would avoid an indefinite Northern Ireland backstop. It also suggests a desire to block Brexit at all costs, as does the push for a second referendum.

Some say we have to give people another vote because no one in the country voted leave in order to be poorer and less secure, or to have fewer choices in the supermarket. I do not know how this can be said with such certainty, especially when there is hard evidence of what people did vote for. Lord Ashcroft’s polling on referendum day, which was in the same ballpark as findings from YouGov and the British Election Study, found that nearly half of leave voters, 49%, said the biggest single reason for wanting to leave the EU was, “the principle that decisions about the UK should be taken in the UK”. One-third said the main reason was that leaving, “offered the best chance for the UK to regain control over immigration and its own borders.” Just over one in eight said that remaining would mean having no choice “about how the EU expanded its membership or its powers in the years ahead”. Only 6% said their main reason was that, “when it comes to trade and the economy, the UK would benefit more from being outside the EU than from being part of it”. Yet when the Prime Minister’s Statement was repeated in this House yesterday, in the exchanges that followed much was said about trade and economics, as was said today—

[Lord Hannay of Chiswick]

The noble Lord has just read out a long list of the motivations of those who voted leave in June 2016, with percentages for those who were moved by those considerations. Will he say which one the Prime Minister’s deal fulfils?

[Lord Farmer]

Will the noble Lord repeat the question?

[Lord Hannay of Chiswick]

After he has read out the list of motivations of those who voted to leave, will he say which one, if any—I do not believe there are any—the Prime Minister’s deal actually fulfils?

[Lord Farmer]

The issue is sovereignty, which, as I said, was not mentioned yesterday and I do not think it has been mentioned today.

--- Later in debate ---

[Lord Farmer]

I thank the noble Lord for his intervention. I am quoting from the House of Commons Library information on democratic deficit. It goes on to say—

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way. Is he by any chance aware that the biggest extension of qualified majority voting was conducted under Baroness Thatcher, with a view to establishing the single market? Why does he think it terribly undemocratic that decisions can be taken by a majority, when he has just told us that because 17 million people voted to leave we have to agree with them?

[Lord Farmer]

I believe that the system until now has been that each country has a veto, and, as I say, the qualified majority voting would now override that veto. I will carry on about the democratic deficit. The Library document goes on:

“The EU’s executive, the Commission, is unelected; the EP is too weak compared with the Council and Commission”,


and elections to it are not really European elections. Electorates vote on the basis of their support for domestic parties, and turnout is low. It has fallen by 30% since the first elections in 1979. The European Union,

“is too distant from voters”,

and,

“adopts policies that are not supported by a majority of EU citizens; the Court of Justice makes law rather than interpreting it; there is a lack of transparency in the Council’s adoption of legislation and in certain appointments (e.g. EU Commissioners); EU law has primacy over national law and constitutions”.

Unsurprisingly, the latest Eurobarometer survey shows that among the EU 28 countries only 42% tend to trust the EU versus 48% who do not, and the UK lags very far behind—53% of those in the UK do not tend to trust the EU versus 31% who do. This, like so many other things, could be blamed on Brexit, but even back in spring 2015 the United Kingdom had one of the lowest trust ratings of the EU’s institutions across the 28 nations. Only 27% tended to trust the European Commission, compared with the EU 28 average of 40%, and only 29% tended to trust the European Parliament, compared with the EU average of 43%.

National leaders are also painfully aware that the EU is in urgent need of reform. According to Tim Shipman’s book about the road to Brexit, All Out War, Merkel was consulted before David Cameron gave his Bloomberg speech pledging an in/out referendum in the Conservative 2015 election manifesto and she,

“urged him to ‘couch the speech in an argument about Europe having to change’”.

He fell in with this, taking,

“Merkel’s advice on how to pitch his call for reform”,

in that speech, by saying:

“I am not a British isolationist. I don’t just want a better deal for Britain, I want a better deal for Europe too”.


That completely sums up my own position.

As I said at the beginning of my speech, we have to lift our heads and see beyond the current entrenched positions. The painful reality and process of Brexit will or should exert enormous moral pressure on the European Union to reform so that continental citizens are better served—otherwise, we could be the first of many to leave. This is another reason why holding a second referendum would be so damaging. Instead of sending the message that democracy and sovereignty matter, and sowing unchokeable seeds of reform, we would instead be saying that they have to be traded off so that we can stay in thrall to a status quo that really serves only the elites who prop it up. In our own and countless other electorates, there would forever be that recognition that democracy ain’t what it seems to be.

European Union (Withdrawal) Bill

Debate between Lord Farmer and Lord Hannay of Chiswick

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Farmer]

I thank the most reverend Primate for his intervention. There is a requirement that our courts, as we heard earlier, would take regard of EU law. We were not being tied to precedent, but certainly—

[Lord Hannay of Chiswick (CB)]

I am grateful to the noble Lord for giving way, but I have some doubts about his repeated assertion that the sort of approach in the amendments is not being taken anywhere else in the EU statute book. I wonder if he would like to read the Prime Minister’s speech at Munich and her references to the European arrest warrant, and try to parse and construe them in any other way.

[Lord Farmer]

Am I going to be able to make my speech? I thank the noble Lord for that intervention. I will be referring to the Prime Minister’s speech on Friday, which I think has some bearing and is more up to date. I am happy to talk to the noble Lord following this debate.

The amendment is highly presumptuous in suggesting a report on a measure that has no established government or parliamentary support. Passing this amendment as even contemplating a possibility of ongoing reciprocal arrangements and thence continually being bound by EU law would allow and openly encourage other areas of law, trade and social life to seek the same. This is not what the Government have said they would permit or seek. Acknowledging the possibility of this distinctive arrangement will encourage the hope of other aspects of trading and commercial life in being bound to the EU in our future arrangements.

Finally, the amendment suggests that there should be a declaration whereby a Minister of the Crown considers whether the rights of individuals in the area of family law have been weakened. This is legally controversial—and I think relates to a point just made—because of a difference of opinion on the respective advantages and disadvantages for families of EU family laws. Proposed new subsection (2)(c) in this amendment is highly presumptive of the expectation that there will be weakened rights, and would act to countenance some sort of special arrangement for ongoing reciprocity and being part of EU laws.

Amendment 53 to Clause 6 would give a UK court the power for eight years after March 2019—that is, to 2027—to refer matters relating to family law to the European court for a preliminary ruling, and it would then be bound by that ruling. Moreover, proposed new subsection (1C) states that UK courts must have regard to decisions of the European court for those eight years, but these eight years could be extended with proposed new subsection (1D). Those eight years appear to me to be entirely arbitrary; certainly, they are intended to take us beyond the next general election. But again the intention of the supporters of this amendment would appear to be that we are forever bound by the European court.

This Bill brings EU law into UK law. The Government have made it very clear that we will not be bound by the European court, but we will give strong regard to its decisions. When we apply law which is the same as EU law, the Prime Minister has made it very clear that our courts will look at European case law. The UK courts will not be bound, as understood in the common-law system of precedent in which courts are bound by higher court decisions. This was the result of the referendum and the present approach of the Government. But when it is looking at UK legislation which is similar to or indeed the same wording as EU legislation, there will need to be strong and good reasons—in my words, but as generally understood—for us not to follow it. That is already similar to the way the UK courts look at the Supreme Court decisions of other friendly jurisdictions when dealing with other international family laws—for example, in relation to Hague conventions in respect of child abduction. The UK is well able and frequently does give very strong and high regard to such decisions without being legally bound by them.

The Prime Minister was clear in her Mansion House speech on Friday on this issue. She used very careful words confirming continued strong recognition of European court decisions but not bound in law. We cannot be bound by EU laws in a reciprocal arrangement with the EU in respect of EU laws unless we are also bound by the European court. The EU will simply not countenance the UK being part of any arrangement for being bound into EU laws without being bound into the European court. This amendment must fail because proposed new subsection (1B) requires that we are bound.

One of the reasons that I and others are very keen we leave this aspect of the EU and its political agenda is because the EU intends its laws to have universal application. This means that they do not apply to just intra-EU cross-border family matters. The EU laws must apply to all cases with no other EU involvement—so, at present, a London/New York family or a London/Sydney couple are bound by EU law. This deals with several areas such as divorce jurisdiction and the inability to bring claims for reasonable needs on a divorce settlement. If the amendment is allowed, we will have cases before the UK courts which have no EU aspect—because we will have left the EU—but in which one party could apply for a preliminary ruling to the European court where it suited their litigation advantage. One can imagine the astonishment of lawyers in, for example, New York or Sydney, saying, “But you, the UK, left the EU several years ago in 2019. Why is this still being referred to the EU and subject to EU law?” Today we must lay to rest, once and for all, any suggestion that the distinctive area of family law should alone be bound by European court decisions.