European Union (Withdrawal Agreement) Bill

Lord Hope of Craighead Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken about devolution, I have made many points and will not repeat them. However, it is important that the Government do not misinterpret the vote to leave the EU on the back of the slogan of “taking back control” as a vote for yet more concentration of power in the hands of people who work within a mile or so of this building. People want a sense of direct influence over their lives and things that really matter to them.

The amendment simply supports the status quo of the Sewel convention. It respects the relationship between Westminster, the Scottish Parliament and the Senedd. I urge the Government to recognise that it does nothing to constrain their agility in negotiating or their ability to negotiate. If the culture change that the noble Lord, Lord Howarth, spoke about so eloquently today is to happen, surely we must recognise that there are Governments other than the one in this Chamber and at the other end of this building.

[Lord Hope of Craighead (CB)]

My Lords, I should like to reply to the point made by the noble Duke, the Duke of Montrose. I think he suggested that the inclusion of this amendment in the Bill would render the convention justiciable, and that there was something about it that would attract the attention of the judiciary. I have lived with the Sewel convention for a very long time, particularly with the amendment to the Scotland Act, now enshrined in Section 28(8). One of the points made by the Smith commission was that it wanted the Sewel convention to be given statutory effect. I am afraid that that battle was lost because, as Section 28(8) of the Scotland Act puts it, it remains a convention. Indeed, it was made perfectly clear by the Supreme Court when it considered the matter that it is not justiciable; it is simply a convention.

For my part—having, as I say, lived with the convention repeatedly through the 1918 Act—I relied on assurances by Ministers that they would respect the convention. It was not actually written into the Act, as I recall. So, for my part, I shall listen very carefully to what the Minister has to say, because in the past this has been handled by Ministers giving assurances that the House has respected. I am not certain that it is necessary to write it in in this way, but if I do not get that kind of assurance, I might go with the amendment. The words that the Minister uses will be extremely important to me in deciding what to do.

[Lord Morgan (Lab)]

My Lords, points have been admirably made by many other distinguished speakers. I will just make one: this whole issue unfortunately shows the frailty of devolution as a basis for keeping our partnership of nations together. Devolution had weaknesses built into it, admirable change though it was. As many of us said, the regulatory relationships between the nations were left extremely unregulated, if you like, and in a very imperfect condition, depending, as the noble and learned Lord, Lord Thomas, said, on the power of the word “convention”, which hovers over the English constitution in a very dangerous way.

The other thing to be said about devolution as a frail basis for a settlement is that it is deliberately asymmetrical, and an asymmetrical devolution means unequal distribution. Wales has always been treated as a poorer relation in the partnership. When there are possibilities of strain, as we see in the case of the Bill, the thing is liable to crumble. The whole basic weakness of the settlement is, alas, likely to continue and to weaken the United Kingdom. It is perhaps appropriate that these aspects are implications of the work of King Henry VIII, who, despite his background, was the master voice of English nationalism. He adopted a colonial attitude to Wales and that is reflected in our current difficulties.

European Union (Withdrawal) (No. 6) Bill

Lord Hope of Craighead Excerpts

3rd reading (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I second everything that the noble Baroness, Lady Hayter, has said and I add my own thanks to all those who have co-operated so well to ensure that the Bill has passed successfully, especially the noble Lord, Lord Rooker. I thank my leader, my noble friend Lord Newby, and my Chief Whip, my noble friend Lord Stoneham. I think we have had an excellent experience in the passage of the Bill.

[Lord Hope of Craighead (CB)]

My Lords, on behalf of these Benches I associate myself with the remarks of both noble Baronesses and pay tribute to the many Cross-Benchers who have been present throughout these proceedings, to whom I am particularly grateful.

[A noble Lord]

Very cross.

European Union (Withdrawal) (No. 6) Bill

Lord Hope of Craighead Excerpts

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

[Lord Howard of Lympne]

The noble Lord is entitled to his view but I would not agree with him.

That is the root cause of the difficulties that we have faced over the last three years. Parliament took a different view. Parliament got the result from the British people, and certainly the then Foreign Secretary, who moved the Second Reading of the Bill, got a result very different from the one that he wanted or expected. I regret to say that Parliament has, at every turn, sought to thwart the implementation of that decision of the British people, and this Bill is but the latest instalment of that sad endeavour. Of course, it gets us nowhere. We have had one extension as a result of the Bill’s predecessor. It has given six months of extra time, which has resulted in no conclusion. The failure of the noble Baroness, Lady Ludford, to answer the question posed by the noble Lord, Lord Grocott, was eloquent in its admission that those who came together to support the Bill before your Lordships, both in the other place and in this House, are not in any sense in agreement about the next steps and what ought to be done.

This situation is made even more serious by the refusal of those who proclaim their belief in democracy to put that belief into practice. It is bad enough that Parliament thinks that it knows better than the British people on this issue; it is even worse that, as things stand at the moment, Parliament is denying the British people a general election in which they would have the right to decide and to express their view on the performance of the malfunctioning of the other place and to insist on the implementation of the decision that they took in 2016. This Bill is, I hope, one of the final acts of a House of Commons that has proved itself manifestly incapable of meeting the challenges in front of it. I urge your Lordships to reject it.

[Lord Hope of Craighead (CB)]

My Lords, we have had only one speech from the Cross Benches so far. I suggest that one more might be appropriate at this juncture.

[Lord Campbell of Pittenweem]

The noble Lord would be regarded as a good chap if he were to give way to me, which he declined to do before. I have never said, nor did I say in my remarks, that the European Union was the sole cause of stability in Europe. Of course, NATO played its part. Indeed, I implied that when I referred to the attitudes and policies of Mr Putin. If he is endeavouring to infer that I believe that Europe alone has kept the peace, that is not the case.

European Union (Withdrawal) (No. 5) Bill

Lord Hope of Craighead Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

Perhaps the noble Lord would also say a word about the effect of a petition against. The fact that the instrument is passed is not the end of the day, or at least not necessarily so. Could he elaborate a bit on the consequences if someone objects after the event?

[Lord Lisvane]

I should be happy to do so. The Convenor of the Cross Benches, the noble and learned Lord, Lord Hope of Craighead, has helpfully drawn attention to the possible uncertainty that might arise were the negative procedure to be kept in place and were there to be a successful Motion for annulment of the instrument that was made under that provision. I suggest that that is an additional argument for returning to the affirmative procedure.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I should like to add one point to what the noble Baroness has just said. Clause 2 is not concerned with the end of this week. The way it is worded, it will apply whenever the issue arises, and that is a matter of considerable concern. We might be moving forward to May. There will be ample time with ample warning, and yet the thing goes through under the negative procedure and is subject to the risk to which our attention has been drawn—of someone objecting—and in due course the date that was in the negative instrument would be declared invalid. That is a big risk to take and we should not be distracted from the fact that the end of this week has certain tensions about it because we are changing the law for all time. That is a very serious step to take.

[Lord Butler of Brockwell (CB)]

My Lords, I hope that this is an unnecessary fear, but it ought to be clarified. My worry, which I am sorry to say has been intensified by what happened on Thursday, is that if an affirmative resolution is needed on Friday or Saturday, is there a risk that it could be filibustered and therefore not passed? We would then crash out because of that obstruction to the business of the House. As I say, that worries me very much, so for that reason I support the inclusion of Clause 2.

Brexit

Lord Hope of Craighead Excerpts

Monday 25th March 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I have tried in previous debates to introduce some element of light-heartedness at this stage of proceedings, but it has not been easy, and I am afraid I have rather given up on Aylesbury. I feel rather like the unfortunate passengers who, on a flight today from London Heathrow to Dusseldorf, found themselves in Edinburgh instead. The lack of direction and uncertainty with which we are proceeding makes it extremely difficult for me to feel light-hearted—or, indeed, to say anything useful in this speech.

I am at least in the happy position of speaking in this debate only for myself. I represent no party; I do not speak on behalf of the members of the Cross-Bench group; and to preserve my independence, I do not discuss my views with any of them, and do not try to form any alliances. I am of course aware from previous debates that the views I shall express are not shared across the group. That will certainly become clear as others, much more qualified than I am to speak on this subject, follow me from these Benches. But I know that I am not entirely alone in the view that I have expressed several times in this prolonged series of debates. That is, that the least unsatisfactory way out of the predicament in which we find ourselves is—however hopeless it may seem now—to approve the deal. I believe that the benefits that it offers, in security and so many other fields, far outweigh the disadvantages of that agreement, which are mainly the inevitable consequences of leaving the EU. The political declaration is a different matter. But, unlike the withdrawal agreement, it is a declaration only. It is not intended to be binding, as an agreement is. It is there for discussion, and—with some change of mind, some greater flexibility—perhaps for manipulation, as we move forward.

As of this moment, awaiting what happens in the other place, the position, as I see it, is—looking at the alternatives—quite simple. With the greatest respect to all those many people to whom the noble Lord, Lord Newby, referred, who came to London and marched through the city last Saturday—some of them came from as far away as the Western Isles, I believe—I really do not want us to have to undergo another referendum, whatever the question might be, thinking of the delay and the ill feeling that would inevitably be generated. Any meaningful renegotiation of the withdrawal agreement could not be achieved without a long delay. The EU has made it quite clear that it is not open for quick negotiation any more. The alternative would be to have what I think the Prime Minister referred to today as a slow Brexit, which would result in our having to hold elections for the European Parliament. I think the public would find that very difficult to accept, in view of the result of the referendum.

There is also the option of a no-deal Brexit. I agree entirely with all the points made by the noble Baroness, Lady Hayter, about that. It is simply not acceptable, as has been made clear by the other place, and by us too, in a series of votes. Everything must be done to avoid that. The risk is still there. However, the EU, which to our eternal shame has been ahead of us at every stage through this misguided process, has injected some discipline into the shambles at our end. It has thrown us a lifeline. We have been given extra time—but there are conditions attached. Surely everything must be done to ensure that we meet the deadlines that have, in one way or another, been left for us. We must not miss the new deadline, or we will indeed have a no-deal Brexit.

As one looks back, it is remarkable how, every so often in moments of crisis, somebody on the world stage says something that captures our imagination. We can all remember Donald Rumsfeld, shortly before the start of the second Gulf War, and the puzzling images he conjured up with his reference to “unknown unknowns”—things that we do not know that we do not know. Noble Lords may remember Saddam Hussein’s absurdly comical Minister of Information, always in military uniform, who, as the Americans were on the point of entering Baghdad, assured us that it was they who were running away, and that the Iraqi forces had won a famous victory.

Now, surely the prize must go to Donald Tusk. There was his clever reply when asked by an enterprising Irish journalist at the end of last Thursday’s press conference whether that special place should be enlarged to accommodate Members of the other place. Your Lordships will recall his words:

“According to our Pope, hell is still empty—


that must have surprised some people—

“it means that there is a lot of space”.

He ended by saying that, as we know, hope is the last to die. Those words reveal what he is really thinking. Your Lordships may remember that that is a chilling reminder of how people fought off despair during the Holocaust. He might perhaps have chosen another phrase, which your Lordships can find on Google:

“Hope is a dangerous thing”.

Those are the opening words of a lyric by an American songwriter Lana Del Rey. She said,

“Hope is a dangerous thing for … me”,

but let us leave that aside. It is a dangerous thing for us too.

Donald Tusk was right, of course. It seems that all we can do now is hope for the best, as the Prime Minister seems to be doing, but the danger is that if that is all we do as we thrash about searching for something that will command a majority, we will fail to meet the next deadline. His words should act as a warning that this really is our last chance.

My hope is that the other place will back the only deal that is on offer in sufficient time, so that we can leave in an orderly manner on 22 May. If that is not possible, one has to look for the next best alternative, and I am driven to the conclusion that it would have to be to ask for a long extension—with all the consequences. Sadly, that would, in the end, be my position.

European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019

Lord Hope of Craighead Excerpts

Thursday 21st March 2019 Lords Chamber

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

My Lords, I would like to address a point made by the noble and learned Lord, Lord Hope, during the debate on this SI on 4 March. I am happy to confirm that my department consulted the Scottish Government, and sought and secured their agreement to make the proposed amendments to the Interpretation and Legislative Reform (Scotland) Act 2010, as set out in Part 3 of the regulations. My department also consulted the Northern Ireland Civil Service in the absence of an Executive, securing its agreement on the proposed amendment to the Interpretation Act (Northern Ireland) 1954, as set out in Part 4 of the regulations. Officials in the Scottish Government agreed that the regulations do not require the formal consent of the Scottish Parliament. In November 2018, my colleague, Chris Heaton-Harris MP, the Parliamentary Under-Secretary of State for Exiting the European Union, wrote to Michael Russell MSP, the Cabinet Secretary for Government Business and Constitutional Relations in the Scottish Government, regarding the proposed amendments. No concerns were raised. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I thank the Minister for clarifying a point which was left unclear in the Explanatory Memorandum. It is very important that these matters, in dealings with the devolved Administrations, are properly set out and clarified. I am extremely grateful.

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

Lord Hope of Craighead Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, now we move to the calmer waters of the Cross Benches. The noble and learned Lord, Lord Goldsmith, had his analogy, and I have mine. When I last attempted to speak in one of these debates I was in the air. I was in a holding pattern, metaphorically speaking, looking down time and again on Aylesbury, lamenting the fact that each time I looked down on Aylesbury, nothing had changed. Here we are a fortnight later, and I am still in this holding pattern and, again, nothing has changed in Aylesbury so far as I can tell. The feelings of frustration, boredom and irritation are still there, double what they were last time. The problem has been that last time I was expecting the pilot to announce that it was only 10 minutes to landing, but she seems to have failed to make contact with ground control and for one reason or another we are still there awaiting some clear signal from her that we are indeed about to land.

The signals we have received are conflicting. I heard last night that it was being suggested that the negotiations have stalled, but today the Minister has said that discussions are ongoing. The question that has been asked is whether the Prime Minister is really going to go to Strasbourg. We have yet to receive the answer, and whether these negotiations go ahead or not is very much in the air. I am still in the difficult position of not knowing exactly where we are going and I am still looking forward to an announcement that seems always to be delayed and still not coming.

I have been thinking of something that might be useful to say, and there is one aspect of the situation that I would like to say something about. If we look forward to what we have been told is likely to happen this week, tomorrow we have the meaningful vote. It is likely, from what we have been told, that the deal will be rejected. That means that the following day there will be a vote on whether there should be a no-deal Brexit, and we expect that the vote will overwhelmingly reject the idea of that kind of Brexit. That brings us to Thursday, with a vote on a Motion that Brexit day should be delayed.

I am very uneasy about that Motion, when and if we get to it, assuming that simply asking for a delay would mean that we would get it from the member states of the EU. So far as I can see, a further delay will do nothing to remove the cloud of uncertainty which has been hanging over this entire process for far too long. Surely we risk an explosion of real anger from those who believe that this delay was not what they voted for but, if there is to be a delay, we need to have a very clear idea of exactly what its purpose is. I made this point last time. A vote simply in favour of delay will not do that, and no doubt those who vote in favour of it will have quite different views from different parts of the spectrum about what they expect to get out of it. We cannot expect to get a second chance, so, if we are to ask for a delay, we have to be crystal clear about the purpose and how long it is needed.

It has been suggested that there might be a case for a very short delay to complete the legislation that we need to have in place before Brexit, particularly a no-deal Brexit, but I do not think that that is what this version, if we reach it, is really asking for. It is looking for more negotiating time, but I find it hard to see what that could be expected to achieve in the period that one can be realistic about, bearing in mind that the European Parliament will dissolve on 18 April. There will then be a long period of inaction until the elections and the Parliament eventually meets. Nothing much can happen in that time and we do not want to be involved in electing further Members to the European Parliament. Therefore, the delay envisaged in this approach will be relatively short and I do not think that anything would be achieved by it. One has to bear in mind that we have not been engaged face to face with the negotiators. We do not know what, if any, are the weak points and what real chance there is of anything further being achieved.

Another alternative has been suggested—that we should ask for a much longer delay. A year has been suggested—I think that Kenneth Clarke has even suggested 21 months—in order that the transition period becomes the period of delay, which we go through while remaining a member of the EU. Whether the member states would agree to such a fundamental change in our approach to the Article 50 process must be questionable, and I am very doubtful that it would be achievable. Even if it were, we run into even further difficulty over breach of trust with those who voted in the majority in the referendum.

A further alternative is a delay so that a second referendum can be held. I know that there are not a few people who have been calling for a people’s vote, and I, as one who voted against leaving, can understand the sentiments that give rise to it. However, I have always been, and remain, of the position that in principle a second referendum would be a huge mistake. I do no need to go over the reasons for that but I retain that view. A delay for that purpose seems to be wholly unacceptable. As I see it, we have to go with what we have. We must lie on the bed that we have created for ourselves for good or ill—mostly ill, as it now seems.

Those thoughts bring me back to the position that I adopted at the outset. I favour supporting the Prime Minister’s deal. I know that it has shortcomings but we must not overdo that criticism by building on to them the inevitable consequences of leaving, such as the fact that we have no control over what happens next. I, for one, am willing to give credit to the Prime Minister and the right honourable Attorney-General for having done the best they can. As I said, not being party to the negotiations, it is very hard for us to know whether anything more could be achieved. So far as I can tell from the noises coming from both sides, the matter has been taken as far as it can be. Therefore, for fear of anything worse, I would go along with the deal. Perhaps I am cautious by nature. However, there is too much at stake and too much to play for. It really is time to settle the matter so that we can move on to the next stage.

I am reminded of the advice in Hilaire Belloc’s cautionary poem about Jim. Noble Lords may remember that Jim was the boy who ran away from his nurse while at the zoo. He encountered a lion and was slowly eaten by it, bit by bit.

“Always keep a-hold of Nurse”,


we are told,

“For fear of finding something worse”.

European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019

Lord Hope of Craighead Excerpts

Monday 4th March 2019 Grand Committee

[Lord Hope of Craighead (CB)]

I am extremely grateful to the Minister for his very careful introduction to the background of the regulations. I should make clear that I have no criticism of the detail of the regulations themselves; I fully understand the reason for them and the explanation he has given has reassured me on all those points.

I have, however, two points on the provisions relating to Scotland. I am delighted to see the noble Baroness, Lady Goldie, here, because she will recall our discussions relating to what is now Section 8 of the Act, when I argued that consent of the Scottish Parliament should be required in the exercise of powers relating to Scotland in any way. As I recall it, she gave me an assurance that the Scottish Government would be consulted on any such amendments and, in the end, I was content with that. It is not in the legislation itself but, rather like the Sewel convention, it is part of the background to the exercise of the power to make regulations under the Act.

My first question is short and technical and relates to the provision in Part 1 of the schedule to which the Minister referred—the reference to the Scotland Act 1998 and the repeal of paragraph 28 of Schedule 8. The reason I refer to it is that it is laid down in Section 8(7) of the European Union (Withdrawal) Act 2018 that regulations under Section 8 may not do various things, among which is to,

“amend or repeal the Scotland Act”.

What is happening here is an amendment to the Scotland Act. That provision is qualified by stating that it does not apply if,

“the regulations are made by virtue of paragraph 21(b) of Schedule 7 to this Act”.

I notice that in the preamble to the regulations, reference is made to that paragraph.

My point is very short. I seek confirmation from the Minister that what we see in Part 1 of the schedule is an exercise of the power under paragraph 21(b) of the schedule and not under Section 8, because if it is under Section 8 standing alone, it would seem to be contrary to the prohibition in subsection (7). I think that is a relatively straightforward point, and I do not imagine that it will cause the Minister any concern.

The second point relates to Part 3 of these regulations which, as the noble Lord has pointed out, amends the Interpretation and Legislative Reform (Scotland) Act 2010. At first sight, it seems very odd that a UK Minister should be amending an Act of the Scottish Parliament; this very important Act was drafted with great care in Edinburgh. There is no doubt whatever that power to do this was given to Scottish Ministers under Schedule 2 of the withdrawal Act, because this is a devolved matter and there is no inhibition on their powers to deal with devolved legislation as they think fit. It seems that the Scottish Parliament is the natural place to make these amendments. One can understand that the position in Northern Ireland is different, because the Assembly is not sitting; it is obviously necessary to make provision by legislative means and this would seem the appropriate way to do it.

That is really a preamble to what we find set out in paragraph 10.2 of the Explanatory Memorandum, which says:

“We have consulted the Scottish Government, the Welsh Government and the Northern Irish Civil Service”.


It is the next sentence which troubles me. It says:

“In particular, we have consulted them on the amendments to the Interpretation Act (Northern Ireland) 1954 and the ILRA 2010; these amendments are made in Part 3 and 4 respectively of the instrument”.


That sentence is wrong, because the amendment in Part 3 is nothing to do with the Interpretation Act (Northern Ireland) 1954 or the IRLA 201; it is an amendment to the interpretation Act made by the Scottish Parliament. Therefore, that sentence does not make sense. The last sentence deals with something different: consultation relating to the technical and consequential repeals to the Scotland Act, which is what we saw in Part 1 of Schedule 2. My question really is this: what is the position in relation to the amendment of the Interpretation and Legislative Reform (Scotland) Act 2010 which we find in Part 3?

Following our long debates on the whole structure of the withdrawal Act, the noble Baroness, Lady Goldie, will understand my concern that the Scottish Parliament should be properly consulted on matters of this kind. I have to say that paragraph 10.2 of the Explanatory Memorandum does not make it clear. The second sentence is plainly incorrect and there is a gap, because it does not mention that Part 3 is an amendment of the Interpretation and Legislative Reform (Scotland) Act 2010. I ask the Minister for clarification as to what exactly is going on here and whether the consultation, which is fundamental to the exercise of the powers in relation to Scotland, has been properly carried out.

[Baroness Neville-Rolfe (Con)]

My Lords, unlike the distinguished noble and learned Lord, Lord Hope, I am not a lawyer and am unable to go into the detail that he has. I look forward to hearing the answers to his excellent questions. However, I have three simple questions that I would like to address to the Minister.

The first question is about impact. When this instrument was referred to us for debate, making it an affirmative instrument, the ESIC commented on the cumulative impact, saying that this meant that it should be debated here. As a consequence, we are all here today. There is no impact assessment and there is a statement from the Government saying that there is no need for one. Given the scale of the changes and the consequential effects, it seems that there could well be more than £5 million-worth of work for all the professional services and from companies in all four countries of the UK. I would be interested to hear more on that.

I also make the comment that, after EU exit, it will be much more difficult to find out what is going on in the EU, which is a problem when we are continuing to take European Union changes on board. We cannot even send representatives to the Committee of the Regions any longer, let alone the Council.

How will we keep business and citizens informed of what is going on in the EU? This is an issue which I hope the EU Select Committee, which I serve on, will look at as part of its report on the future bilateral institutional arrangements with the EU 27. This troubles me a bit because I am looking forward to post Brexit and how we will work alongside our friends in the EU 27, allow our citizens to continue to visit them, and our businesses to continue to operate.

My second question is a simple one. There has been no consultation except with the devolved Administrations. How do we know that the quite extensive changes that are being made in this Order are safe?

Finally, as my noble friend knows, I strongly support the Government’s approach to providing a new legal base for the post-Brexit world and for doing that in the orderly way he is pursuing. However, I would be interested in an update on the gaps that there may be on Brexit day, particularly in the not very likely event of no deal. It seems that this Order helps to deal with some of the gaps, but I would be interested to know how many more there may be that we should be worrying about.

--- Later in debate ---

I deal next with the question raised by the noble and learned Lord, Lord Hope. The restriction on using the correcting power in Section 8 to amend or repeal a devolution Act does not apply to the Government of Wales Act 1998, as this is not a protected Act. It is under Section 8, but the amendments to the Scotland Act 1998 fall within both exceptions under Section 8(7)(g). It is consequential from the repeal of Section 6 of the European Communities (Amendment) Act and the provisions within which it is being repealed, which modify another enactment. I can tell the noble Lord that we have consulted with the Scottish and Welsh Governments; we have written to Ministers about this directly and they have raised no concerns about our proposed course of action. As I said, the SI was drafted in consultation with the devolved Administrations, with particular regard to these consultation amendments. The technical consequential amendments to the Scotland Act 1998 and the Government of Wales Act 1988 were explicitly agreed with the devolved Administrations. As I said, we wrote to them; no concerns have been raised by Ministers either.

[Lord Hope of Craighead]

I am grateful to the Minister. Has he answered both of my points? I had a question about Part 1 of the Schedule, which he has indeed answered, but my other point was on what in Part 3 of the regulations themselves relates to the Interpretation and Legislative Reform (Scotland) Act 2010. I was pointing out a defect in Paragraph 10.2 of the Explanatory Memorandum. From what the Minister has said so far, I am not clear whether he accepts that there is a defect in the wording of that paragraph. However, if there is, would the Minister accept that it should be more clearly worded, to make it clear that the Act referred to in Part 3 was the subject of express consultation as well? Furthermore, although I think one cannot now alter the Explanatory Memorandum, could he undertake, when this measure is introduced to the House, to make it absolutely plain that that particular step was taken, just so that we do not have to go over this ground again in the House itself?

[Lord Callanan]

The noble and learned Lord makes a valid point. It could have been clearer. I will look at it again with lawyers and officials, and we will come back to it in the House. On the Scotland interpretation legislation, some amendments were made in the EU withdrawal Act; these regulations make the consequential provision that the Minister considers appropriate in consequence of this Act. This includes further amendments to the Interpretation and Legislative Reform (Scotland) Act 2010, drafted together with the Scottish Government. But I take his point about the Explanatory Memorandum; we will have a look at it, and perhaps I can write to him and come back to it when we consider it further in the House.

My noble friend Lady McIntosh and the noble Baroness, Lady Hayter, raised the comments by my honourable friend Chris Heaton-Harris, and the question of why we do not deal with the non-ambulatory references and/or retrospective deficiencies in the devolved interpretation legislation. The principal purpose of the Act is to provide a functioning statute book. However, the Government and Parliament recognised at the time that it would not be possible to make all the necessary legislative changes in a single piece of legislation. That is why the Act conferred on Ministers temporary powers to make secondary legislation to enable corrections to be made to laws which would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system would continue to function correctly outside the EU. I remember at the time we had extensive discussions about it. The noble Lord, Lord Beith, in particular was exercised about ambulatory references. There was discussion about the issue at the time.

EU Withdrawal

Lord Hope of Craighead Excerpts

Wednesday 13th February 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, if you were to fly from Edinburgh to London Heathrow early on a Sunday evening—as I used to have to do week after week when I was serving in this House as a Lord of Appeal in Ordinary—you would find that shortly before you reach London the aircraft slows down and begins to turn gently to the right and progress in a circle. I believe it is called a holding pattern. We were told it was over a place called Bovingdon, which I was never able to identify from the air. At its western perimeter it extends to Aylesbury, which, from a height of 15,000 feet—first time around—looks quite interesting. You can see the line of the railway and the roadways all progressing in a north-westerly direction. As you come around for a second time and you look down at Aylesbury, you find that nothing has changed. It does not actually seem any more interesting than it was before. The third time around, you become really bored with Aylesbury, which is a delightful place to visit, I am sure, but nevertheless the process of going round and round in this circle is something that engenders various feelings: partly boredom, partly frustration and, for those who have deadlines to meet—a connecting flight, for example—increasing anxiety. One of the features of the holding pattern is that you, the passengers in this aircraft, are never told how long it is going to go on. Of course, an end is reached when there is an announcement, which I think goes like this: “Cabin crew: 10 minutes to landing”. At that point, you can be reasonably confident that the pilot, for her part, knows exactly where she is going.

I have not kept the same count as the noble Lord, Lord Newby, but as far as I am concerned this is the third debate on the agreement that I have taken part in—the third turnaround in the holding pattern. So far as I can tell, we have the prospect of yet one more to come—another take-note debate and another vote, perhaps in two weeks’ time—and we have not yet been told that there are only five or 10 minutes to landing.

I think there is more than a grain of truth in that part of Mr Tusk’s carefully planned outburst, born of frustration, about,

“those who promoted Brexit without even a sketch of a plan how to carry it out safely”,

having something to answer for. As I did in this holding pattern, I feel a sense of increasing frustration, especially at the business we are doing in these weeks and in the forthcoming business weeks ahead. We are being fed on a diet of no-deal statutory instruments that most of us hope will never be used. When we look back, perhaps in six months’ time, we will come to realise that this—no doubt necessary—step has engendered an enormous waste of time and money. Leaving aside the debate as to whether the legislation is necessary or required, there is increasing concern, as we get closer to 29 March, that it will be more and more difficult to put through the legislation that surely has to be in place before Brexit. Like the noble Baroness, Lady Smith, I look forward very much to hearing what the noble Lord, Lord Callanan, has to say as to what that legislation is. I rather agree with the catalogue that the noble Lord, Lord Newby, gave us a few minutes ago.

All that having been said, on how we get out of the maze that surrounds us I remain of the view—which I have expressed at least twice before—that there is really not very much wrong with the agreement itself if the backstop issue can be sorted out in a way that will satisfy those parties that have genuine concerns about it. I for one detect some positive signs in the Prime Minister’s Statement, particularly as I raised the issue of language in an intervention some weeks ago. Particularly interesting, I thought, were the second and third steps she mentioned—that,

“there could be a legally binding time limit to the existing backstop”,

or that,

“there could be a legally binding unilateral exit clause”.—[Official Report, Commons, 12/2/19; col. 731.]

Arguing for these solutions is not going to be easy and may well take time, but it is not quite as far-fetched as some might think that a solution by one or other of those means might be reached. I suggest that the line would be to fasten on the assurances that are already there in the protocol. Article 1.4 states that:

“The provisions of this Protocol are … intended to apply only temporarily”;


I emphasise “only temporarily”. Article 2.1 states that:

“The Union and the United Kingdom shall use their best endeavours”—


I emphasise those words—

“to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part”.

Article 6.1 states that “a single customs territory”, which was at the centre of the arrangement, “shall be established”, but only until the “future relationship becomes applicable”. Especially, there is the overriding obligation in part 1 of the agreement at Article 5: the obligation of good faith.

We need to remember that the obligation of good faith carries much more weight in civil law systems than it seems to do in ours. In civil law, it is a principle about the implementation of a contract which can be enforced. There is no such general concept in English common law, which tends to regard good faith as a rather vague concept, not carrying very much weight. I hope we can build on the civil law concept and the language to which I have drawn attention already. The language is already in the agreement, after all. The case can be built on what is already there. I am glad to hear that the Attorney-General, who tended to underplay these points in his earlier advice, is now an active member of our negotiating team.

If something useful can be obtained out of this, what then? Accepting the agreement still seems to me the best way out of a highly unsatisfactory situation. Those who favour this course can only hope that this will achieve majority support before time runs out. I absolutely agree with the noble Baroness, Lady Smith, in the first part of her Motion, that we must stress yet again that a no-deal situation is wholly unacceptable.

Looking ahead, the political agreement is troublesome—long on aspiration, painfully short on detail. As the Prime Minister herself said, it is not legally binding and provides for a spectrum of outcomes. It is far short of the framework that Article 50 contemplates, and negotiations will not be made any easier by the fact that if we reach that stage we will already be outside the EU.

There is much force in the point made by a former Cabinet Secretary last week that there is a real danger here unless we are given a clearer idea of the eventual destination by those who are supposed to be in charge of our affairs. Much hard thinking has to be done behind the scenes to work out a plan for that stage—not just a sketch of the plan, as Mr Tusk contemplated—that will command majority support as we set off into these negotiations. It will not be easy, but it is a very necessary step.

As already mentioned, time is patently too short for all the pre-Brexit legislation to be put through, whatever one makes of it. Insisting that we leave on 29 March looks more and more absurd, given that there is such a powerful case against a Brexit with no deal. A sharper attention to the timetable is necessary, which is the subject of the second part of the noble Baroness’s Motion. However, if one gives effect to what that Motion contemplates, it will leave us with only four weeks—just 16 sitting days—to get all the business done. The number of days shrinks time and again as we look at them. Surely the exit date must now be postponed.

If we are to ask for that, or if it is offered to us, we must have a clear idea as to what any extension is designed to achieve. I hope that although much effort is still to be concentrated on discussions about the agreement, a real and genuine effort is put in to working out a sound and convincing argument for an extension. That needs to be a detailed plan so that the timing of the extension can be guided by what needs to be done. After all, we cannot expect to be given a second chance. It would be a real tragedy if we were to fall short on that point and end up by default with a chaotic Brexit.

Brexit: Withdrawal Agreement and Political Declaration

Lord Hope of Craighead Excerpts

Wednesday 9th January 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it seems to me, too, that nothing much has changed since we began our debate on this subject on 5 December. I said then that I felt trapped in a maze from which there was no way out. It seemed then that, despite the EU’s obvious shortcomings, we would almost certainly lose more than we would gain by leaving it. However, I was, and I still am, willing to respect the result of the referendum and to regard it as something from which there can be no turning back. Nevertheless, I still feel trapped, because there is no way out that is as attractive as remaining in the EU, and because, of the various possible ways out of the maze that give effect to the result, some are distinctly less attractive than others.

I said that nothing much has changed. There was of course last night’s vote in the House of Commons, and another vote this afternoon, but on their own these votes have not moved anything forward. One thing still seems to be just as certain as it was on 5 December: as the law stands, we will be leaving the EU on 29 March. That is the effect of paragraph 3 of Article 50. The treaties will cease to apply to us on that date—that is, two years after the notification—if we have not entered into a withdrawal agreement. Frankly, rather than crashing out of the EU, as it is sometimes put, we will be pushed out—ejected, one might say—by this article of the Lisbon treaty. We are still faced with the same problems.

As matters stand, there seems to be no majority in the other place for the agreement on the table. Personally, I regret that, because of the uncertainty that this situation gives rise to. As I said last time, I sympathise with those members of the public, many in the business community, who are fed up with the process and want to move on and have certainty. It is not just the business community. Many other people, up and down the country, have, quite frankly, given up on all the detail. Some just want a deal to happen so we can move on. They recognise that there may be a price to be paid because the deal has not a few things wrong with it, but they are willing to pay that price and to move on. There are others who wish that the whole issue would go away and who would like to have another vote on it.

Like last time, I am left with three possible ways out of the maze, other than accepting the deal that is now on the table. The first is no deal. I still think that, if leaving the EU with this deal will make us all somewhat poorer, to leave with no deal at all would be far worse. I agree with the noble Baroness, Lady Smith of Basildon, that this is simply not an option. Business leaders and the Governor of the Bank of England tell us that it is the worst of all worlds. Furthermore, leaving on WTO terms, which this seems to amount to, would leave so much in this agreement unresolved. To take just one example, the consequences for our security and for judicial co-operation in criminal and family law matters would be very serious. No solution for this problem has yet been devised that can be relied upon, after many months of trying and calling for it in this House and other places. The time to do anything about it is fast running out. For me, this is simply not an option.

One other point we should recognise is that the European Union (Withdrawal) Act, the legislation we are currently seeking to implement in various ways through SIs and so on, was drafted on the assumption that there would be an agreement. It does not begin to address the situation that would arise if there is no deal. Is it conceivable that we could have legislation that does that in place, in time, for all that would have to be done before 29 March? I very much doubt it.

Should we ask the Prime Minister to go back and renegotiate, in the expectation that some significant changes can be achieved? Again, it seems to me to be too much. It would prolong uncertainty with little prospect of success, and it is far from clear how much can be done about the wording of the political declaration at this stage. Article 50 contemplates agreement on what it describes as a framework for our future relationship. The political declaration is far short of what can be described as such, but it is something that looks to the future, and it may well be the best we can get for now. Whatever we do, and whatever may be got out of further discussions with the EU negotiators, is for the future.

Back to the people? Of course, if a second referendum were to reverse the vote, it would open the door to a decision by Parliament not to leave after all—to no Brexit. But we would be deluding ourselves if we thought that this would settle the matter for ever. The last campaign was unpleasant enough. “Project Fear” and all the other slogans would raise their ugly heads again. So would those who are likely to promote trouble so as to get their own way, from whichever side. If the result were to be to remain, there would be much resentment among people who voted the other way. They would feel that they had been cheated. They would not remain silent—and who can blame them? It seems to me that there are real dangers here, however attractive this solution might seem.

It seems to me, after all, that the best way out of the maze, defective though it may be, is to accept the agreement and the political declaration for what they are. Part of me regrets that, because there are aspects of it which I do not like. Let us have a sense of perspective, however. We must be careful not to confuse the shortcomings of those documents with the inevitable consequences of no longer being a member state of the EU, about which we can do nothing. Furthermore, the agreement that we are being asked to look at is a deal about the withdrawal and the implementation period only. There is much more work to be done. We should look to the future and move on to the next stage. We should concentrate our efforts now on establishing a sound basis for our future relationship with the EU through that negotiation process which lies ahead, so that we can create what can truly be described as a framework for our future relationship with the EU. That is what really matters in the long run.

The decision to leave was always going to leave us with less than we wanted. We were always going to have to compromise. What is before us is an imperfect deal, for all the reasons the noble Baroness, Lady Smith of Basildon, explained to us. But that is all we have. So I am where I was in December. I am prepared to swallow all my misgivings, and to accept the agreement and the political declaration as the best answer to the calamity of no deal.