European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Lord Cormack (Con)]

My Lords, we should take an example from the noble Lord, Lord Dubs, who replied with great graciousness this afternoon, and move forward, jettisoning wherever we can the words “Brexit”, “remain” and “leave”. Wherever we stood in the past, we are now moving forward. I am very glad that there has been no contesting of the will of the elected House, which represents the will of the people. Let us now try to have some unity and some real healing across both Houses.

[Lord Howarth of Newport (Lab)]

My Lords, I would like to express my personal appreciation for the way in which the noble Lord, Lord Callanan, has handled his responsibilities at the Dispatch Box. Although I am somewhat anomalous on this side of the House in being—if the noble Lord Cormack, will allow me to say—in favour of leaving the European Union, none the less, I am sure that many of my colleagues have also respected the hard work and the gracious spirit in which the Minister has presented the case on behalf of the Government.

However, I cannot agree with his commendation of these so-called Commons reasons. It is disappointing for this House that the Commons has dismissed the amendments that your Lordships’ House sent to them, with no serious consideration whatever. That represents a failure to recognise and respect the proper constitutional role of this House. In the proceedings on this Bill, this House has not sought to obstruct the Government’s purpose in passing the withdrawal legislation. Everybody in this House accepts that the Government have a mandate to do so, and everybody understands the time constraints. None the less, this House sought to improve the legislation in important respects.

My noble friend Lord Dubs, and the noble Baroness, Lady Deech, have made the case very well indeed in respect of the issue raised in the Dubs amendment, but there were also important constitutional issues that arose from the Bill, and they are not negligible. They concern, for example, the formal processes and the spirit in which the Government seek to relate to the devolved institutions as we withdraw from the European Union and develop the new relationship. They concern the excessive Henry VIII powers that the Government have chosen to take in this Bill—one of them, very importantly, providing for the Government to take powers, by regulation, to intervene in the realm of the judges in determining how they should handle European retained law.

There are other areas, including Clause 41, which has provided a very large, very extravagant opportunity for the Government, by regulations, to abolish or amend, in substantial respects, primary legislation. It is not just legitimate but our duty to have considered these matters, and it is disappointing that in the other place, the Government, Ministers and Members of Parliament have not thought it worthwhile to give any significant consideration to these issues. Taking back control of our laws should represent a full restoration of parliamentary government, and a full restoration of parliamentary government should mean a proper working relationship between your Lordships’ House and the other place. It should not mean a new excrescence of, to use that memorable term coined by a very distinguished Conservative, Lord Hailsham, the “elective dictatorship.”

[Baroness Hamwee (LD)]

My Lords, I simply have one request for the Government. What will shortly become Section 37 provides for a statement of policy within two months. The Minister talked about reassuring noble Lords. Those who need reassurance are EU citizens—those covered by my noble friend’s amendment—and those affected by the child refugee situation. I hope that the Government, who have told us that they have been negotiating, can bring forward a statement of policy well before the end of the two months.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

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

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer the Green group’s support for this amendment. Noble Lords will have noticed that your Lordships’ House is not quite as crowded as it was when we were debating the amendment in the name of the noble Lord, Lord Dubs. I invite your Lordships to consider all the people who are not here—the people in our supermarkets, streets, workplaces and wilderness areas. We have been talking about EU standards, but I would call them the people’s standards. These standards were won by campaigns and struggles—by people in the UK and across the EU who stood up against the lobbyists and corporate interests. They stood up against those who had so much power in deciding what kinds of standards there should be in places such as the United States of America. They stood up for something better.

The Government keep saying that they want to have higher standards than the people’s standards that we have had to fight so hard to get. I entirely accept the need for much higher standards. In this hugely nature-depleted country, each year we are collectively consuming the resources of our share of three planets—although we have only one. We are pumping out so much greenhouse gas. As the noble Lord, Lord Hendy, so eloquently outlined, we have people in really desperate workplace situations. We need better standards, but these people’s standards are a foundation.

I am sure that we will hear from the Benches opposite about the UK’s crucial place in the UN climate talks as part of COP 26 this year. If the Government do not incorporate this amendment into the withdrawal agreement Bill, what kind of message will this send about us as the chair of COP 26?

[Lord Howarth of Newport (Lab)]

My Lords, this amendment proposes that we should not regress from the existing EU-derived rights and practices in relation to the protected matters specified in the amendment. I see no difficulty in principle about that. There may be much merit in it in terms of continuity of public policy and of reassuring the public that we will maintain the standards that have so far been established by the EU and continue to conform with them.

But it is surely essential that we retain the right to diverge. The noble Lord, Lord Howell, gave some very important reasons for this. The world is changing, and our country and economy need to be alert to all the changes that will provide opportunity for us in the future, as we seek our fortune in a wider world. The eurozone economy is a relatively inert and sluggish region of the global economy. While much has been achieved and very important protections have been established for workers’ rights and environmental issues, as the noble Baroness has just mentioned, and we do not want to lose that acquis—those achievements and benefits—we have got to be flexible and be able to be innovative.

The essential principle of Brexit is that we take back control of our laws. It is an entirely reasonable proposition that this Parliament should legislate to perpetuate our conformance with certain particular laws that have already been enacted. It is a very different proposition that we should commit ourselves to the proverbial level playing field and the principle of non-divergence following the end of the implementation period. That is not what is envisaged in the amendment, but it seems to have been contemplated by a number of noble Lords in their speeches. If taking back control of our laws means anything, it means that we must reserve the right to diverge. Indeed, we will need to have the right to diverge even from what has already been established and achieved when it proves in some sense obsolescent, as new reasons and new horizons emerge for the kind of changes and developments that we would seek to achieve in our economy.

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

I thank all noble Lords who took part in this debate. I thank the noble and learned Lord, Lord Goldsmith, for so eloquently introducing the subject. The amendment is very much like proposed new Clause 31, tabled by the noble Baroness, Lady Jones of Whitchurch, in Committee. I am grateful to the noble Baroness and the other noble Lords who took part in the debate on that amendment as well. Noble Lords will be completely unsurprised to discover that the Government’s position on this matter remains unchanged.

The amendment fundamentally mistakes the nature of the Bill before us. The amendment is about our domestic policy post exit in a number of extremely important areas. However, by contrast, the Bill is about implementing the withdrawal agreement into domestic law. It is not about our post-exit domestic policy, important though that is. Therefore, we believe that the amendment is wholly inappropriate for this Bill. However, since the amendment has drawn us into a debate, even though it is beyond the scope and purpose of the Bill, it might be useful for me to reiterate how we will take decisions about issues such as environmental standards and other matters once we have left the EU.

As I set out in Committee, these matters were debated extensively during the passage of the 2018 EU withdrawal Act. I remember replying to that debate; I think that many of the same noble Lords who contributed today took part in that debate as well. Noble Lords will remember that, back then, the concern raised was that the Section 8 power in that Act would be used to regress from EU standards. I reiterate that the Section 8 power can be used only for the purposes of correcting deficiencies that arise as a consequence of the UK’s withdrawal. That is what we said then, and I think that our record has proven that to be the case.

The 2018 Act does not provide a power to change laws simply because the Government did not like them before exit, and the Government cannot use the powers for the purposes of rolling back standards and protections merely because we wish to do so. Instead, where we seek to depart substantively from retained EU law, separate legislation will be brought forward, as indeed it already has been in certain areas. At that point, Parliament will, as normal, have its opportunity to scrutinise the Government’s actions. This would allow for tailored and intense scrutiny. I have no doubt whatever that this House and the other place will fulfil their duties in this regard with great vigour. Once again, I reiterate our view that these debates are for that future legislation.

In any case, I can reassure noble Lords that the Government have no plans to introduce legislation that would have a regressive effect. We will not weaken protections in these areas when we leave the European Union; rather, we will maintain and enhance our already high standards.

We spoke at length in Committee about the Government’s record on the environment, chemicals, food standards and animal welfare. For the sake of clarity, I will again set out some of our commitments. First, the UK has a long and proud history with regard to the environment and it is of the utmost importance that this is maintained when we leave the EU. There are areas where we are already planning to go further than EU legislation permits, such as single-use plastics. The Government will shortly be introducing the environment Bill, which we promised during the 2018 debates. It will strengthen environmental protections and enshrine environmental principles in law.

I will take this opportunity to reply to the point made by my noble friend Lady McIntosh on the subject of sow stalls, a debate which I remember well from my time in the European Parliament. That is an example of the UK going beyond EU rules in the full knowledge of the likely consequences. We chose to go further. We may decide—I am not committing us—to go further on live animal exports and in other areas, enhancing what protections are currently provided under EU law. If we do, we should consider the consequences. However, as the noble Lord, Lord Howarth, correctly pointed out, the whole point of Brexit is to take back control. These are decisions which we can make for ourselves in this Parliament in future. We do not need an external power dictating what we do in these regards.

On employment rights, I reassure the noble and learned Lord, Lord Goldsmith, that we are committed to ensuring that workers’ rights are protected as the UK leaves the EU. We are legislating in areas where the EU is only just starting to catch up. It is the UK that has been shaping the agenda on tackling abuses in the gig economy, a point well made by my noble friend Lord Howell of Guildford. As we announced in the Queen’s Speech, we will be bringing forward legislation to continue delivering and building on the Good Work Plan. This will give workers in the UK the protections they need in a changing world of work. Much as I greatly enjoyed the entertaining vignette from the noble Lord, Lord Hendy, I remind him that in a number of these areas—including holiday pay and maternity pay—the UK already goes much further than EU minimum standards permit. That is something that we should be proud of, and it is something that we are going to build on.

I have set out the Government’s view that this amendment is not appropriate for this Bill. I have also, I hope, provided some reassurance about the Government’s intentions regarding some of the issues raised by the amendment. I will close by noting that the effect of the amendment is unclear. The proposed new clause before us makes government action with a “regressive effect” unlawful, but it leaves many of the key terms unworkably vague. It is somewhat surprising that the noble and learned Lord, Lord Goldsmith, does not appreciate the poor wording of the amendment. First, the failure to define “protected matters” makes the scope of the amendment unclear. Secondly, the uncertainties in the definition of a “regressive effect” would create a great deal of legal uncertainty. Perhaps he is hoping for some legal uncertainties, as they would provide more work for lawyers. That was a joke, by the way. “Regressive effect” is defined as an effect that

“reduces a minimum technical standard … or … weakens governance processes associated with that standard or protection.”

The meaning of a reduction or a weakening, in this context, is not at all straightforward. Making this regressive effect unlawful without a clear definition carries significant legal risks, and may restrict policy with a progressive design, as the Government may avoid making policy changes for fear of acting unlawfully. This could impede delivery of post-Brexit government policy intended to deliver improvements in these areas.

To give an example, the waste framework directive sets targets for preparing for reuse and recycling of waste to achieve the EU’s ambition to move to a circular economy. I think that we would all support that. The targets are set on weight, so the directive obliges member states to ensure that a minimum of 55% by weight of municipal waste is reused and recycled by 2025, 60% by 2030 and 65% by 2035. However, weight-based targets may not lead to the optimal environmental outcome. If the UK were to remove this target and replace it with a target set on a different metric—on carbon, for example—while the UK could have improved standards, we could still be held to have regressed on environmental protections, were this amendment to become law. This kind of legal uncertainty has been decried in other debates.

This Bill is the vehicle to implement the withdrawal agreement in domestic law; it is not to legislate for our post-exit domestic policy in these areas. That is for separate debates in separate fora. We will no doubt have them with great vigour, as we do in all these policy areas. The amendment is neither necessary nor appropriate for the Bill. The Bill will ensure that we move forward and focus on our domestic priorities. Noble Lords can already scrutinise any changes that regulations might make to retained EU law under the Section 8 power. As I said earlier, and say again for the benefit of clarity, the Government are committed to maintaining and enhancing our already high standards, including through legislation where appropriate. I hope, given the reassurances I have provided, that the noble and learned Lord is able to withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Howarth of Newport]

29: Schedule 4, page 68, line 9, leave out from “41(1)” to end of line 10 and insert “may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, this is the grand finale of Report stage. If the Chamber is not packed then I am not personally dismayed because we prefer quality to quantity in our debates, do we not?

Subsections (1) and (2) of Clause 41, as the noble Baroness, Lady Jolly, explained just now in the preceding debate, contain “breathtaking” powers, to use her word. The very valuable report of the Delegated Powers and Regulatory Reform Committee says that

“clause 41 … contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament passed from time immemorial until the end of the transitional period (the end of 2020) as part of such provision as the Minister considers appropriate in consequence of the Act. Such regulations are made pursuant to the negative procedure.”

That provision for the negative procedure is set out in Schedule 4 on page 68, line 9. It is that point of the Bill that I seek to amend.

Clause 41 and Schedule 4 provide a portmanteau Henry VIII power. It is the ultimate set of Henry VIII powers; you can go no further with such powers than the Government seek to go with these. The Government might seek to defend themselves on the basis that these powers are provided in the context of consequential and transitional provisions, but if the Minister seeks, in the pursuit of the policy set out in the Bill as a whole, to amend primary legislation there is nothing at all in the legislation to inhibit him in any way from doing so.

The Government might also seek to defend themselves on the basis that the courts in practice would construe pretty strictly what powers the Government sought to exercise under these provisions, but we do not want these matters going to the courts. If they do, it takes the courts and judges into political terrain that it would be much better they kept out of.

The Government take powers in Clause 41 to amend or, indeed, repeal any previous enactment up until the end of this year. The noble and learned Lord, Lord Judge, pointed out to us yesterday that a certain provision of Magna Carta was vulnerable under the policy adumbrated in the Bill. I am sure that when he comes to respond, the Minister will explain that he has no intention of repealing Magna Carta. Indeed, we have already been reassured in previous debates that the Government do not intend to use the Henry VIII powers with which they have peppered the Bill to undo the devolution settlements or to pursue other draconian purposes.

However, the Government really have written a constitutional monstrosity into the Bill. As the noble Baroness, Lady Kramer, said just now, this is a bad and improper precedent. Unless the Government can produce a justification, which I find unimaginable, for the taking of these extravagant powers they should not write them into the Bill at all. As the noble Baroness suggested, in an age of populism it is particularly undesirable that extreme powers be taken casually. It is a proper responsibility of your Lordships’ House to keep an eye on what is going on and, where legislative practice becomes unacceptable, to point it out to the other place.

If Members of Parliament perused the Bill and informed themselves in close detail about it, they might consider that they had been rather insulted. We should certainly give them the opportunity to consider that possibility. Members of Parliament on the Conservative side of the House of Commons might be uneasy about what appears to be in conflict with the Conservative Party’s manifesto. I have taken the precaution of looking at it. In the section entitled “Protect our democracy”, it is asserted:

“As Conservatives, we stand for democracy and the rule of law.”


It goes on to say:

“Once we get Brexit done, Britain will take back control of its laws.”


I do not think that, when voters studied the Conservative Party’s manifesto and Conservative parliamentary candidates took it as their oath of prospective office, they actually thought that taking back control of our laws following Brexit would mean a power grab on the part of the Executive, which is potentially happening.

Ministers have already sought to reassure us. In the debates we held on Clauses 21 and 26, it was insisted that there were no such malign intentions as the legislation would make possible. They wanted to reassure us by pointing out that the regulation-making powers so extensively set out in Clauses 21 and 26 could be exercised only under the affirmative resolution procedure. That is a mitigating circumstance, but it by no means undoes the mischief of taking the Henry VIII powers in the first place.

However, in the letter that he wrote to us, the noble Lord, Lord Duncan of Springbank, acknowledged that the regulation-making powers it is proposed that the Government should have under Clause 41 would be exercisable under the negative resolution procedure. He gave no explanation or justification for that. I do not know whether this inconsistency in approach and resort to extensive regulation-making powers under the negative procedure at Clause 41 is the result of a drafting error and a mistake, but if it was there will be an opportunity for the Government to amend it.

Following the amendments made by your Lordships’ House, the Bill will go back to the House of Commons. It would be quite easy for the Government to amend it in this regard, and they could do so with no loss of face or dignity. When Governments are flush with electoral success, they have a tendency to swagger. The bigger the majority and the higher the euphoria of electoral success that they feel, the more important it is that they act soberly when legislating and proceed with humility and magnanimity in their dealings with Parliament. Magnanimity is a Latinate word, which I hope will appeal to the Prime Minister, but if humility and magnanimity are too difficult, the Government should at least conduct themselves in relation to Parliament with respect and courtesy. Macho attitudes to legislation make for bad law.

The manifesto goes on to say that

“we… need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”.

Indeed, our scrutiny of the Bill thus far has indicated that there is a great deal for the Government—and the commission it proposes—to consider in the relationship between the Government, Parliament and the courts.

The manifesto then goes on to say that the new Government and their commission will want to look at the role of the House of Lords. I hope that Ministers in the other place and Members of Parliament will understand that the traditional constitutional role of your Lordships’ House is to act as an advisory and revising Chamber. The principal way in which the House of Lords offers its advice and proffers its revisions is by way of amendments to legislation. In doing so, your Lordships’ House poses no threat to the Government. There is no lese-majesty. In all the debates we have had on this Bill, it is clear that this House accepts that the Government have a mandate for Brexit. There is no attempt by your Lordships to subvert Brexit and thwart the Government in their purpose of enacting this withdrawal legislation.

[Lord Hamilton of Epsom]

It is probably true that since the election and the outstanding victory of the Prime Minister, this House has finally accepted that a Government are in power who want to deliver Brexit. However, that certainly was not true before the election; a very large number of amendments passed by your Lordships’ House then were intended precisely to stop us leaving the EU. They were wrecking amendments which went completely in the face of the decision taken by the people in the referendum.

[Lord Howarth of Newport]

As the noble Lord knows, I shared some of his frustrations about the last Parliament. However, in the last Parliament this House did not subvert the authority of the elected House but sought to be in consonance with its wishes. I therefore do not think that Members of Parliament need to be concerned —nor did they need to be concerned during the last Parliament—that the House of Lords is a threat to the House of Commons. That plainly is not the case in this Parliament.

Amendment 29 is a moderate amendment. There are two issues. One is the Government’s propensity to take excessive Henry VIII powers. The other is procedure—the manner in which Parliament should approve the regulation-making powers that would be brought forward under this legislation. My amendment does not seek to remove the Henry VIII powers. It does not say that Clause 41 should not stand part. I do not know what the consequences would be for the proper functioning of the legislation if I had sought to achieve that. I have sought to amend the aspect of the Bill dealing with the procedure for adopting regulation-making powers. I hope that the Government accept that it would be appropriate to substitute the affirmative resolution procedure for the negative one. Even then the amendment would not be ideal, because if your Lordships’ House rejected regulation-making powers under the affirmative procedure, there would be howls of protest, as my noble friend Lady Hayter observed earlier in our debates. It would be regarded as a constitutional outrage on the part of your Lordships’ House. At any rate, if the Government are willing to accept this amendment, it will enable Parliament as a whole—both Houses—to express its view on the legislation and, if necessary, for either House to reject any attempt that the Government might make, by way of regulations, to alter the principles of law or to rewrite primary legislation. I beg to move.

--- Later in debate ---

[Lord Callanan]

My Lords, we have reached the final amendment. I thank the noble Lord, Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, for their comments and for setting out their positions. I understand the concern of noble Lords about the parliamentary procedure attached to the consequential power in Clause 41. We have already noted these concerns; noble Lords in other debates have raised them and we all read closely the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. I addressed many of these points last week, when I spoke to the amendment in the name of the noble Lord, Lord Tope. I hope today to provide similar reassurances to the noble Lord, Lord Howarth. I agree with so many of his points on EU withdrawal, although perhaps not this one.

As noble Lords are aware, consequential powers are standard provisions in legislation, even legislation of great constitutional significance, such as the Scotland Act. If noble Lords look at Schedule 5 to the Bill, they will see that we have already included many of the consequential amendments required as a result of the Act. However, we also believe that we need a power to make further consequential provisions to the statute book.

I am aware that the noble Lord, Lord Howarth, yesterday asked for assurance about why the consequential power in Clause 41 is subject to the negative procedure. I understand the noble Lord’s concern but reiterate that the power is limited to making amendments that are consequential to the contents of the Act. Its scope is very different from the powers discussed over the last 10 days by my noble friends Lady Williams and Lord Duncan, which will be used to implement the withdrawal agreement. It is in everyone’s interest that the statute book functions effectively. Moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make the necessary consequential changes before exit day and could lead to legal uncertainty. I hope noble Lords agree with me that this is not the appropriate course of action.

This procedure is limited to giving Ministers the power to make regulations that are in consequence of the Act, like consequential powers in many other pieces of primary legislation. This power will be construed strictly by the courts. It can be used only to make amendments that are appropriate to legislation in consequence of something that the Act does. I am sure noble Lords agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members of this House will still have the opportunity to pray against regulations, should they consider them inappropriate, as is usual for regulations of this kind. I hope I have provided the necessary reassurances to the noble Lord and that, as a consequence, he is able to withdraw his amendment.

[Lord Howarth of Newport]

The noble Lord, Lord Callanan, has not provided me with the reassurance I seek. In my earlier remarks, I anticipated the arguments that he would offer about why we can be relaxed about these powers being taken and believe him when he says that the scope would be minimal. That is not the case. I am extremely grateful to the noble and learned Baroness, Lady Butler-Sloss, for speaking as a most distinguished lawyer. She encourages me, in my legal amateurism, to believe that I am on the right track. I think I am. I hope that, even overnight, the Minister may be willing to reflect further on this, and that the Government will accept the amendment. It would be in earnest to the magnanimity on the part of the Government that I venture to hope might manifest.

[Lord Callanan]

For the avoidance of doubt, this is not a matter that we will reflect on further. Therefore, if the noble Lord wishes to pursue his amendment, he needs to test the opinion of the House.

[Lord Howarth of Newport]

I also hoped that the Government might want to demonstrate their good intentions towards their future constitutional behaviour, but there it is; we cannot win every battle. Maybe, in the watches of the night, the Minister will repent and reconsider. On that basis, I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Bowness]

That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.

I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.

I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.

It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.

[Lord Howarth of Newport]

My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.

It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.

When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.

I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.

Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.

I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.

It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.

There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.

[Lord Kerr of Kinlochard (CB)]

The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.

[Lord Howarth of Newport]

It was desperate expedient. The Government had no option, given the parliamentary arithmetic.

[Lord Kerr of Kinlochard]

That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.

The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.

I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.

[Lord Howarth of Newport]

Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.

[Lord Kerr of Kinlochard]

Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.

--- Later in debate ---

[Viscount Hailsham (Con)]

My Lords, I associate myself with the remarks made by the noble Lord, Lord Newby, and indeed with the remarks I suspect will be made by the noble Baroness, Lady Hayter. I will not go into the detail of the matter because it has been very eloquently argued by the noble Lord, Lord Newby. I will confine myself to three general points.

The first is that the position that the Government are now taking in the Bill is wholly inconsistent with the position that we took before the general election. We are entitled to know why, as a matter of substance rather than political guile, the Government are moving from a position previously expressed to that now expressed in the Bill.

Secondly, following a point made by the noble Lord, Lord Newby, I say that this prohibition is bogus because we all know full well that a Government with a majority of 80 in the House of Commons can, if they so choose, reverse a provision in a Bill—as they did, for example, on the Fixed-term Parliaments Act. If that is true, then anybody who says that this will help the Government in their negotiations with the European Union is talking nonsense, because the European Union interlocutors will know as well as we do that this provision can simply be set aside.

I come to my final point. I have been involved in negotiations, both as a politician and as a lawyer, for 40 years, and I believe in the importance of flexibility. In the last debate, a number of noble Lords talked about the importance of giving the Government flexibility and not tying hands. The noble Lord, Lord Howarth, was one; the noble Lord, Lord Butler, was another; and a third was my noble friend Lord Callanan, who made the point that events can overturn outcomes and things can happen which are surprising and destroy timelines. That is going to happen if we impose an arbitrary timetable. What could well happen—indeed, what is likely to happen—is that the Government come back with either weasel words and an amendment of the statutory time; or we get a partial and incomplete agreement, or an unsatisfactory agreement, or no agreement at all. If we had more time, the situation could be perfected.

This is a profoundly unwise provision in the Bill and we would do well without it.

[Lord Howarth of Newport]

My Lords, I will not repeat the arguments that I put to the House at Second Reading in support of Clause 33 and the ruling out of an extension of negotiations beyond the end of this year, but will just make two points now. I was surprised that the noble Lord, Lord Newby, who, as I recall, once held the economic brief for his party, appeared not to recognise the profound damage to our economy that the prolongation of the Brexit process has already caused. It has now been three and a half years, during which it has been very difficult for rational participants in our economy to make investment decisions or decisions of other kinds. Our economy is now in a fragile condition, and it cannot be in our national economic interests to perpetuate this process any further than is absolutely necessary. For that reason, it is highly desirable that investors should be able to look forward with some confidence to the conclusion of the negotiations about the future relationship by the end of this year.

That brings me to my second point. Again, I was puzzled as to why the noble Lord, Lord Newby, considers that a bare-bones agreement would cover only tariffs and quotas. I cannot see why the essential elements of all the necessary agreements cannot be negotiated between now and the end of the year. Personally, I would be quite relaxed if some technical fine-tuning were still needed subsequent to 31 December, and indeed I accept that the multiple process of ratification across the European Union will take some time. If we can achieve the certainty provided by a resolution of the key issues by the end of the year, that can only be helpful, 2and if the Government reaffirm their determination on that point in the form of Clause 33, that will also be helpful.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.

Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.

There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.

Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.

--- Later in debate ---

[Baroness Williams of Trafford]

The noble Lord hits the nail on the head, because one might ask what Section 17 was about in the first instance. I said at the beginning of my speech that Clause 37 could not have existed, and we could have deleted Section 17, but Section 17 is, in most part, as it was originally, and is amended to include the reporting to Parliament and not the seeking to negotiate. It goes above our obligations and commits the Government to lay that Statement to Parliament on our policy regarding future arrangements with the EU for the family reunification of unaccompanied children seeking international protection, providing Parliament the opportunity to scrutinise our progress.

The clause makes it clear that supporting the most vulnerable children remains a priority, along with restoring the traditional division of competences between Parliament and government, as the noble Lords, Lord Howarth and Lord Butler, pointed out. The noble Lord, Lord Howarth, said that Parliament cannot give the Government their marching orders in negotiations. I hope that I have quoted him correctly.

[Lord Howarth of Newport]

As long as the Minister does not suppose that I do not fully support the spirit of the amendment of my noble friend Lord Dubs.

[Baroness Williams of Trafford]

No, I was not making that inference. I was trying to point out both consistency and inconsistency within some of the debates we have been having today, as noble Lords seem to have contradicted themselves depending on what the issue is. On the division of competences between Parliament and Government, noble Lords will have seen, and will continue to see, changes being made across the Bill. It does not undermine our policy intent and rightly ensures that Parliament is informed of our policy intentions in respect of our future arrangements. The noble Lord, Lord Dubs, said that we have already written to the Commission, and that is correct. It shows our intent and commitment in the coming year.

The noble Lord, Lord Kerr, spoke of Clause 37 killing Section 17. It does not; it amends it, as he went on to outline.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, three and a half years after the referendum, at long last the people’s decision that we should leave the EU will be honoured, as Parliament passes this withdrawal legislation. There are issues about Parliament’s role in the process provided for in the Bill, but the major constitutional crisis of Brexit, the clash between the people and Parliament, is over. We are at a historic turning point for our country. The withdrawal from the EU that this Bill will enact can be the prelude to the renewal of our democracy and our economy, and to healing the wounds in our society.

The Government are right to insist in Clause 33 that the negotiation of our new relationship with the EU must be accomplished by the end of this year. There can be no virtue in perpetuating the transitional limbo. The essential elements of the necessary agreements can be negotiated on this timescale. On trade, we start from a position of regulatory alignment and no tariffs or quotas. To the noble Lord, Lord Barwell, whose maiden speech I very much admired, I say that it is in neither side’s economic interest to erect barriers where there are none. Any difficulties are not technical but political, and their resolution must be a matter of political will. As a country responsible for our own laws, we must insist on the principle of regulatory equivalence, not replication.

The free trade agreement between the US and Australia was negotiated in a year, in 2005, despite opposition from the agricultural lobbies in both countries, because President Bush and Prime Minister Howard were both determined to deliver it. A will to deliver quickly on the part of the EU will be much encouraged if we pursue parallel negotiations on an FTA with the US. If European manufacturers and farmers see the prospect of American exports entering the UK market tariff-free, they will press European leaders and negotiators very hard not to disadvantage them through having to face new UK tariffs.

Brexit is straining the union of Great Britain and Northern Ireland. Welcome as the restoration of the Northern Ireland Executive and Stormont is, the fact remains that, whatever his protestations, to secure the withdrawal deal the Prime Minister cut Ulster adrift. His deal, providing for a new customs border in the Irish Sea, the subject of Clauses 21 to 24 of the Bill, gives a large shove towards a united Ireland.

I am more optimistic that Scotland can be retained within the UK. At the election, 54% of voters in Scotland voted for unionist parties; the situation is much more ambiguous than Nicola Sturgeon claims. I think that when Scots look down the barrel of the independence gun, they will flinch: they will balk at the economic sacrifice entailed by losing their subsidies from English taxpayers and will not want a hard border at Gretna Green.

Those former Labour voters in the red wall constituencies of England who were determined to have Brexit, despite all the advice from economists and remainers that it would make them poorer, demand a new politics. They are right to do so: they are the people who have been worst failed by neoliberalism. Market forces have been allowed to destroy communities and tradition, and have produced deep and persistent poverty, chasms of regional inequality, chronic financial crises and a climate emergency. Withdrawal from the EU will help us escape the havoc of neoliberalism, still dominant in a Brussels infested with the lobbyists of big business. Finance, inexorable as it is, is not the be-all and end-all, and nor is GDP.

The cruelties of austerity, such as the two-child limit for social security and the closing of Sure Start centres, have become intolerable—the Brexit vote told us this. The case for fiscal expansionism has now been accepted by the Government. We must reinvent the role of the state in rectifying injustice and using its power in humane intervention, so as to support the precariat and the people who are the casualties of technological change. Rules restricting public investment to the south-east must be rewritten. Support must be given, not just for big infrastructure projects but for local people creating productive local economies in post-industrial areas. Local culture and dignity must be respected. Whitehall must give away power and allow revived autonomy in communities across the UK.

This legislation opens the way to a rebuilding of national self-belief. We can end the ugly attitudes of nativism in a new era in our international dealings. Withdrawal from the EU entails radical remodelling of politics and policy, and so much the better.

Brexit: Preparations

Lord Howarth of Newport Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Callanan]

I can certainly assure the noble Lord that we have had extensive discussions and that planning has taken place with the security services to ensure that they have all the data available to them to enable them to do their job. It is the case, of course, in terms of national security, that many of these discussions go on outside the European Union, and those good relationships will continue. With regard to law enforcement data, we are putting mitigation steps in place to make sure that we can still take full advantage of the procedures.

[Lord Howarth of Newport (Lab)]

My Lords, given the serial inability of the House of Commons to reach a constructive conclusion on Brexit even when presented with this deal, which reasonable people should surely be able to compromise on and agree with, and given the very real possibility that the EU Council—fed up with the dithering and indecision of our Parliament—will decide that it has had enough and refuse to grant us an extension, is it not mere common sense that the Government should redouble their efforts to prepare for the contingency that we leave the European Union without a deal on 31 October? In these circumstances, would it not also be appropriate for this House to express its appreciation of all those officials who are straining every sinew to make sure that we are adequately prepared for such an eventuality?

[Lord Callanan]

I thank the noble Lord for his comments. It is indeed common sense that we prepare for that eventuality. It seems to be a common sense that escapes a number of Members in this Chamber, but it is the sensible thing to do. I indeed want to pay tribute to the many officials who are working extremely hard, up and down the country, seven days a week. As I walked into a meeting in the Cabinet Office on Sunday morning to discuss these matters, I thought of that very fact.

Brexit: Preparations

Lord Howarth of Newport Excerpts

Tuesday 8th October 2019 Lords Chamber

[Lord Callanan]

I think it was a UK referendum, not just a Conservative referendum. We are committed to honouring the result. I entirely understand the position of the Liberal Democrats: they want to forget about it and disavow the result, hoping that it will all go away. That is an offence against democracy, but I am sure that we will have this debate when it comes to the next general election.

[Lord Howarth of Newport (Lab)]

My Lords, does the Minister accept that most people in this country will not share the indignation expressed by some noble Lords about the Government preparing for no deal, but will think that it is the obvious responsibility of the Government, while continuing to work towards a deal, to prepare for the contingency of no deal, which remains a very real possibility? Does he also accept that whatever the present intransigence of the Commission, the member states of the European Union will surely recognise that it is in their interests to work very closely and collaboratively with us on issues of security?

[Lord Callanan]

As always, the noble Lord makes very good points. Most people will of course accept that it is the legal default, and we should be preparing appropriately. I also entirely accept his other point. A lot of security co-operation takes place outside of the EU sphere, and we have been assured by the people responsible that that co-operation will continue, but of course, some security co-operation relies on access to EU databases et cetera. It is extremely disappointing that the Commission does not wish to discuss how we can better keep people safe in these areas.

Brexit

Lord Howarth of Newport Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, let us remind ourselves that the case for leaving the European Union is to reclaim the legislative sovereignty that we lent to the European Communities in 1972—and that is a prize of great value. The delegation of so much policy and legislative responsibility to the democratically defective institutions of the European Union has been, I believe, a powerful factor in the growing disaffection with parliamentary democracy that we have witnessed in our country. To take back these responsibilities gives us an opportunity to renew our democracy.

Our country is indeed “full of passionate intensity”; that is not surprising, because Brexit is a struggle for the soul of the nation and the future of our democracy. When people were asked in 2016 to vote to leave or to remain, they were in effect asked, “Do you wish to preserve the status quo?”. That question prompted an outpouring of long pent-up anger against elites and a howl from those who had been failed by the neoliberal orthodoxy practised by all parties in government. Many leavers now take the view that their Parliament is intent on cheating them, while many remainers are fearful of the mob. This is a dangerous state of affairs and we urgently need an access of moderation and reason.

To resume self-government in the sense that Brexit would permit is not to consign our nation to Faragism, to reaction, to racism and to xenophobia. It will be open to us to choose to be a liberal and internationalist society, and that is what I believe people will want to choose. For the centre-left, so unconfident about a post-Brexit future, the challenge is to put forward a vision of a sustainable economy, social justice and policies for climate change, and to win elections.

It is hard to see how compromise between the leave and remain positions can be achieved. Leavers see the Brexit issue in terms of freedom and democracy; remainers choose to frame Brexit in terms of the economy and standards of living. These two sets of considerations do not engage. The withdrawal deal, which I believe was an honourable attempt to find a compromise, was rejected vehemently by both sides of the argument on three occasions.

Is the present condition of our politics therefore a massive failure? There is certainly immense frustration in the country and a paralysis of decision-taking. The parties appear to have descended into chaos. There is too much excessive language, whether of surrender or of catastrophe, in our political discourse. Abuse and threats abound. It was very wrong for the Prime Minister, in a system of parliamentary government, to rouse the people against Parliament. He should desist from the use of populist language and seek to speak for the country as a whole. Among the many divisions in politics is that between those politicians who seek to appeal to,

“the better angels of our nature”,

and those who conjure demons.

On the other hand, it could be said that what has been happening in our politics is rather admirable. There is a mighty contest between politicians who have passionately held but conflicting views of what will be for the good of the country. When the Government have been unable to advance, Parliament has chosen to take the initiative; the Speaker has upheld the right of the House of Commons to do so; politicians have worked across party boundaries and some have been willing to sacrifice their careers for their principles; and the Supreme Court has proved an effective check on arbitrary government—the Prime Minister should never have made that stupid and improper attempt to prorogue Parliament for five weeks.

Whichever view noble Lords may take, we now need as quickly as possible a resolution to the essential Brexit issue of whether we leave or remain, and we need a return to mutual respect and reconciliation. But I fear that neither a referendum nor a general election will produce those outcomes.

Meanwhile, as we look at the time horizon between now and 31 October, it is I suppose possible, although it seems unlikely, that the Prime Minister will negotiate a deal with the European Union. If he does, that deal will presumably be the withdrawal deal with the backstop tweaked. But for many leavers that will be viewed as Brexit in name only.

I will quote Professor David Collins, professor of international economic law at City University:

“We must keep in mind that there are many features of the Withdrawal Agreement which are just as bad as the Backstop, but which have received far less attention, notably from our Prime Minister. The Withdrawal Agreement would maintain the supremacy of EU law over the UK, including new laws created by the EU over which the UK would have no voice. This means that UK courts would be required to strike down Acts of Parliament if they are determined to be inconsistent with EU law. Worse, the jurisdiction of the European Court of Justice would be retained, either directly or through a dispute settlement system modelled on the one the EU has with the Ukraine through which a notionally neutral tribunal would be bound on issues of EU law by decisions of the ECJ. Since the UK would have no judge on the ECJ, it would effectively be under the jurisdiction of a foreign court”.


Have we come this far for that? What kind of sovereignty is that? There will be anger if that is the nature of the deal, and it is very questionable whether the House of Commons would vote for it.

Alternatively, we may leave with “no deal”—I use that as a term of art; the noble Lord, Lord Lilley, explained that there are many deals that mitigate the notion of an absolute no deal—should one of the member states of the European Union veto an extension. I believe that that would not be a catastrophe. We would of course have been much better prepared for such a contingency had the previous Chancellor, Mr Hammond, not forbade further public expenditure on preparations for no deal at a crucial phase—but the present Chancellor, Mr Javid, is seeking to make up for lost time. Yes, we would go through choppy waters, but we would go through no hurricane. We could come through, as we have come through many periods of economic disruption and difficulty before. Then, as we worked towards a free trade agreement, we would be doing so with our heads held high as a self- governing nation.

--- Later in debate ---

[Lord Davies of Stamford (Lab)]

My Lords, I want to begin by commenting on two of the speeches made earlier on by the noble Lords, Lord Lilley and Lord Howarth. They were both very original speeches; those Members of the House always make original speeches. Both were the subject of considerable reflection. Nevertheless, I detected in those speeches a considerable degree of complacency about the threats facing us. I believe that complacency is such a danger in economics and in politics, in business and generally in life, that it needs to be commented on if it arises. I may say that both noble Lords have been long-standing personal friends of mine for over half a century, and we have been arguing about politics and economics together since we first met at a university in the Fens, 55 years ago. I hope that this is not the end of a beautiful friendship.

The noble Lord, Lord Howarth, said that we may go through some choppy water if we have a hard Brexit, but that is all right; we will get through that okay, with the help of the Bank of England, fiscal spending and so forth. I have to tell him that fiscal spending is not a cost-free policy. As you build up your debt—and public debt in this country has risen from less 20 years —you are gradually reducing your capacity to intervene in the future. We learned in the 1970s where that can eventually lead, and it is not something that one should do lightly.

The noble Lord, Lord Lilley, managed to make out that in fact there would be no increase in customs checks as a result of our leaving the European Union. That seemed to me inherently implausible; but he completely left out the subject of the longest delays in any border checks, which is the issue of certificates of origin, which is extremely complicated and a nightmare for those who are organising international logistics. I think that should be taken into account. I have to tell him, too, that the continental customs authorities do not share his very optimistic view. In June I happened to be in the Netherlands, with two or three colleagues who were equally interested in the subject. We were very kindly received by the head of the Netherlands customs in Rotterdam; we saw the port there and met many of her leading staff. They told us that they have taken on about 900 new employees, simply to deal with additional UK business after Brexit. The Dutch are serious people; they do not hire 900 people just to watch the traffic and do nothing. Noble Lords can make the arithmetical calculations as easily as I can, but you can imagine, if there are 900 people who intervene with a lorry every hour or two hours, for two minutes, three minutes or five minutes, how much that will induce delays in the process of clearing trucks through Rotterdam that are destined for the United Kingdom. There is clearly a material change happening there, and the same thing is happening in other ports and suppliers. Rotterdam is of course the major port that supplies us. I do not think that complacency is in order there, either.

[Lord Howarth of Newport]

I am most grateful to the noble Lord and very much appreciate his kind personal words. If he would be good enough to look at Hansard and see what I said, he will not find that I mentioned either the Bank of England or the Treasury. What I do believe, though, is that our businesses in this country have a great deal of resilience, a great deal of power and a great deal of creativity, and they will be able to weather the transitional difficulties. I do not think that that is complacent, but a reflection of reality.

[Lord Davies of Stamford]

I must apologise to the noble Lord for adding words that he did not pronounce. I got the distinct impression that what he was talking about by way of remedial action was monetary or fiscal spending. Fiscal spending would have had the consequences that I have just outlined. I apologise to him and hope that I have not unduly traduced the message he was delivering to the House. I feel very strongly on this matter of complacency, faced with a possible recession. I know that the noble Lord will agree with me on this: recessions are very unpleasant things. They destroy businesses, they destroy jobs, they destroy the jobs that people might have had and will never have. They destroy the economic sense of security of families. A lot of the human destruction and economic destruction takes a very long time to repair. It is not something that we should walk into lightly. I am very worried indeed and I hope that he understands why that is—that we may be heading in that direction.

[Lord Howarth of Newport]

I very much agree with the noble Lord about the damage that recessions cause. Does he have any reflections on the fiscal policy of the Government, which has now become quite explosive and puts the country at very great risk, of exactly the nature he has been describing?

[Lord Davies of Stamford]

I am so glad that I am once again in thorough agreement with my noble and long-standing friend. Of course, I am very worried about that; I mentioned it in our debate last week, so I will not go into that subject now, but I could not agree more on that subject.

I must turn to the proposal that the Government made today to the European Commission. It seems to me to be a thoroughly dishonest and disreputable document. It is exactly the sort of document that one would expect our Prime Minister to deliver and was probably not one where there was any expectation that it would be accepted. I suppose that Mr Johnson wanted to be in a position where he had made some offer, so that he could then say that it was all the fault of the European Union for not accepting it—albeit that he did not produce anything until a month before the deadline. The document does not address at all the matter that is of greatest concern to the Irish, which is the long-term avoidance in Ireland of an internal border or frontier. A border, in my definition—and in the definition of most reasonable people—is an administrative line on the map which, if you cross it, has practical and probably financial consequences. That does not mean that the border has to have an infrastructure at any particular point. It means simply that if you cross this line, you will be deemed to be liable in one way or another. That is exactly what we must avoid in Ireland, if we want to respect the Belfast agreement. It is what the Irish are determined to avoid. That is the position at present: there is no internal border on the island of Ireland. You can go between any of the 26 counties and the six counties, any time you want, with no consequences whatever of an administrative or practical kind. That is what we need to preserve. That is not achieved by this proposal and I imagine that for that reason alone it will and should be rejected.

The contradictions have already been pointed out by my noble friend Lord Adonis. They are quite serious because they have completely devalued the document. On page 3, the document says:

“This is entirely compatible with maintaining an open border in Northern Ireland”.


In the next paragraph, it says that,

“all customs processes needed to ensure compliance with the UK and EU customs regimes should take place on a decentralised basis”.

If there is an open border in Northern Ireland, why do you need customs processes and regimes? That is completely contradictory. I am taking a little more time, but I had two interventions.

The other notable contradiction in this document is on page 2, where it says that the proposal,

“provides for the potential creation of an all-island regulatory zone on the island of Ireland”.

Two paragraphs later, it says that under these arrangements,

“Northern Ireland will be fully part of the UK customs territory”.

These are blatant contradictions and devalue the whole document.

Brexit: Appointment of Joint Committee

Lord Howarth of Newport Excerpts

Wednesday 3rd July 2019 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, the Joint Committee that my noble friend proposes should be clear-eyed in weighing up the costs and implications of no deal by comparison with other options.

One option is still for us to leave under the terms of the Prime Minister’s withdrawal deal. Donald Tusk said yesterday that we should not expect the new leaders of the EU institutions to offer any other deal. However, the withdrawal deal is deeply objectionable to both leavers and remainers. Leavers see it as Brexit in name only; remainers think it a poor substitute for full membership.

Another option is to revoke Article 50, but the House of Commons is not going to vote for that either, and rightly so. For Parliament to repudiate the decision of the British people at the 2016 referendum would be catastrophic for our democracy. The two main parties pledged themselves to respect the verdict of that referendum. The esteem in which Parliament is held has been deteriorating throughout our political lifetimes, and Brexit has precipitated a crisis of confidence in Parliament. The House of Commons has failed to resolve Brexit, and voter support for the two main parties has never been lower. Here, as in much of the EU, we can see a more sinister politics emerging out of frustration with the main parties and parliamentary government.

A third option is another referendum. That would be a cop-out by Parliament. As Mr Heath discovered at the February 1974 election, the people do not expect their MPs to pass the buck back to them. A second referendum would be even more bitterly divisive; nor would it resolve the impasse. Whether it turned out that leave or remain had more votes, the majority would be narrow, leaving us with the same problem of consent and reconciliation as we have now.

Meanwhile, during the many months it would take to legislate and then organise and hold the referendum, the economy would continue to suffer. Uncertainty is the great enemy of markets and investment. The Governor of the Bank of England spoke yesterday of the drag from Brexit uncertainties intensifying. Our political paralysis has caused business paralysis. The latest PMI and ONS figures highlight the malaise. Do we want to extend from three to four years this vacuum in which little or nothing is done to address our uncompetitive productivity, in which businesses hoard cash, stockpile goods and defer investment decisions, and in which the number of people doing precarious and poorly paid jobs has soared, as has the number of people resorting to food banks? A second referendum is not in the interests of the poor and disadvantaged.

Alternatively, we might have a general election. This seems more likely to happen by accident than design, but there is a real possibility that an early general election could follow a vote of no confidence. If there were to be a general election, it would not take the politics of Brexit into clear water. A general election would be about more than Brexit. Neither leave nor remain could claim the outcome as vindication. The fragmentation of identity and political support among the electorate means in any case that, under first past the post, an election is unlikely to deliver a Government with a working majority.

So what other options are we left with?

Perhaps the new Prime Minister will be able, at the 11th hour, to pull a rabbit out of the hat and negotiate a new deal that is acceptable to Parliament. It is hard to foresee success in such an endeavour, but it must be right to try. In the circumstances of a serious new negotiation, possibly the EU would agree to another extension, but that is far from certain, and postponement is not resolution.

If negotiation does not work, we are forced on to so-called no deal. As is now the legal default, we could simply leave on 31 October. This is what people of a nervous disposition—and they are right to be nervous—call crashing out. Legal uncertainty, a sudden alteration of terms of trade and severance of contractual and administrative processes would indeed be disruptive and possibly very damaging in ways that even the committee my noble friend proposes could not altogether foresee. No one can responsibly advocate this. If it is what, through failure of negotiation and planning, we find ourselves having to deal with, no doubt as a country we will cope, as we have coped in other crises. Mitigations by the Treasury and the Bank, common-sense waivers of the rules and bold improvisations by Whitehall and business would limit transitional damage, but people would get hurt.

There can, however, be a relatively benign version of no deal. It is not too late to achieve a managed no deal. This is an option that the Bank envisaged in its response to the Treasury Select Committee last autumn. The Bank’s projection was that a managed no deal would provide for future growth to be only 1.5% less by 2023 than under the Prime Minister’s withdrawal agreement—no catastrophe, therefore. The Joint Committee, once it has examined the evidence, might consider that comparatively minor diminution of prospective growth a price worth paying in these circumstances, in which there are compelling objections and obstacles to all other options.

It has been grossly irresponsible on the part of the Chancellor, since the referendum, to have dragged his feet on preparing for no deal. Yesterday he repeated his adamantine opposition to no deal, but whatever he or others may have wished, no deal has always been a possibility and there are no excuses for failing to make the fullest preparations for that contingency. So much more could have been done to mitigate the risks of no deal and, of course, to strengthen our negotiating position. As President Macron also said yesterday:

“If you fear no deal you are the hostage”.


I was appalled to read in the Guardian of 11 April that, following the postponement of Brexit from 29 March, Whitehall transferred 6,000 officials who were at last preparing for no deal back to other departmental duties and stood down operational planning for no deal.

Be that as it may, we still have four months before our scheduled departure date of 31 October, and a great deal of useful preparation for a managed no deal can be made in that period to build on the reassuring plans for no deal that have already been made on both sides of the Channel in relation to transport, customs and so forth.

I know the EU believes it is politically necessary to show—pour encourager les autres—that it must be painful for a member state to leave the EU. But the 27 and ourselves continue to profess friendship. Good will, common sense and pragmatism can still, in the interests of our EU trading partners and ourselves, make no deal manageable, with much potential damage avoided.

My understanding, supported by eminent legal and academic authority and pace the noble Lord, Lord Kerr of Kinlochard, is that under Article XXIV of the GATT we can avoid new tariff barriers between ourselves and the EU, precluding the need for a hard border in the island of Ireland, if the EU makes a simple commitment in principle to start negotiations with us to achieve a free trade area.

It is a moment to remember the old maxim:

“Keep calm and carry on”.


A Joint Committee may find that, sensibly conceived and with determined preparation, no deal can well be manageable and transitional turbulence can be minimised. It may conclude that it would be the least unsatisfactory route to the resolution of Brexit.

Which would be better for our country? To pursue economic growth, regardless of other values, within an ailing EU or to nerve ourselves to seize the great prize that Brexit offers of the recovery of national self-government and the opportunity to renew our democracy and self-belief?

Brexit: Free Trade Agreement

Lord Howarth of Newport Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Callanan]

To repeat the answer that I gave to the noble Lord’s noble friends Lady Hayter and Lord Tomlinson, we are prepared to compromise and we have offered what we thought were potential solutions. I understand that the Opposition Front Bench are considering them, and a dialogue is still taking place. The talks are not concluded and are still being undertaken, so let us hope that we can get an agreement and the matter can be put to bed.

[Lord Howarth of Newport (Lab)]

My Lords, taking the Minister back to his first Answer, what would be disorderly about leaving with a free trade agreement?

[Lord Callanan]

Of course there would be nothing disorderly about leaving with a free trade agreement, but we need to negotiate that agreement. It is a very detailed and complex subject. To get on to those negotiations, we need a withdrawal agreement to settle all the outstanding issues. If we do not have a withdrawal agreement, the EU has made it clear that it is not prepared to discuss any free trade arrangement until we settle all the issues.

European Union (Withdrawal) (No. 5) Bill

Lord Howarth of Newport Excerpts

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

[Lord Forsyth of Drumlean (Con)]

My Lords, noble Lords are saying that it is for the other place to set a date. My understanding is that it will have one hour to consider our amendments and every aspect of the Bill. It is apparent from the speech made by my noble friend that there is an issue here. As I raised on Thursday, I do not understand why the Bill did not have a money resolution. It is perfectly possible that, in return for agreeing a date, the European Union could demand even more than the £39 billion already offered by the Prime Minister, and that the financial consequences could be considerable. This amendment seeks some kind of time limit on the process, which is sensible.

[Lord Howarth of Newport (Lab)]

My Lords, we should be grateful to the noble Baroness, Lady Neville-Rolfe, for her amendment and for inviting us to consider the issues she identified. Any damage our economy is experiencing at the moment is on account not of the people’s decision in the 2016 referendum but of the highly protracted process and continuing uncertainty that is paralysing economic decision-making, particularly in investment and consumer decisions. The noble Baroness is absolutely right: we need the best objective assessment available as to the damage that the continuation of this uncertainty would cause. The proponents of a long extension of Article 50 must address the question of their responsibility for the continuing economic damage that would result.

[Lord Robathan (Con)]

My Lords, in rising to support my noble friend, I am somewhat confused because this is a Private Member’s Bill that was absolutely pushed by the noble Baroness, Lady Hayter, who is not here today, from the Labour Front Bench only on Thursday. It was then taken forward by the noble Lord, Lord Rooker, who is not here today, and now it is being taken forward by the noble Lord, Lord Robertson. I am sure that that is all normal, but this is a huge constitutional step which seems to have, as my noble friend Lord Forsyth said, no parents. This is a very important step and we seem to be drifting into it without any considered thought at all.