European Convention on Human Rights: 75th Anniversary

Lord Lilley Excerpts
Thursday 20th March 2025

(2 weeks ago)

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Lord Lilley Portrait Lord Lilley (Con)
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My Lords, I congratulate the noble Lord, Lord Alton, for whom I have an enormously high regard, on securing this debate and his introduction to it. It is a paradox that defenders of the supranational European Court of Human Rights invariably begin with an appeal to British chauvinism laced with deference to Conservative icons by invoking the creation myth. That goes as follows: “The ECHR was a British invention, inspired by Churchill, drafted by Maxwell Fyfe, which codified historic British rights. Since we were the first country to ratify it, it must have been eagerly endorsed by us”.

That is almost entirely false. Attlee’s Government ratified the convention with great reluctance and only on condition that the future European court would have no jurisdiction in the UK since British people would not be allowed to take cases to the court. They also treated the convention as non-binding, deliberately not altering laws known to be incompatible with it. Moreover, when Churchill returned to No. 10 a few months later with Maxwell Fyfe, then Lord Kilmuir, as his Lord Chancellor, despite some ambiguous enthusiasm for it when in opposition, he adopted exactly the same position as Attlee, as did subsequent Conservative Prime Ministers—not allowing the court jurisdiction in the UK.

The second myth about the ECHR was that it simply codified British rights which had evolved over centuries. If that was all it did, British membership would confer little benefit and leaving would be no loss. This myth implies that few British laws would be incompatible with the convention. If only. Judgments have been made in 567 cases and the UK found to be in violation in one or more respects in no fewer than 329 of them by the Strasbourg court. In addition, the court has decided over 25,000 British cases by rejecting them or declaring the vast majority inadmissible, but after enriching the lawyers. That would be no surprise to those advising Attlee’s Government, who warned that allowing recourse to Strasbourg would provide

“a small paradise for some lawyers”—

now among its most enthusiastic supporters. In the immigration and asylum tribunals alone, human rights cases were 40% of the 350,000 cases received over the last eight years. To say it has no impact within the UK is an absurdity.

The original purpose of the European court was not to fine-tune each country’s statute book but to protect fundamental freedoms, from torture, slavery, arbitrary arrest et cetera. The third myth is that the court has succeeded in this objective. It was always unrealistic to imagine that any regime which was prepared to use torture, slavery or arbitrary arrest would be put off by the prospect of an adverse ruling by a foreign court. In practice, whenever an authoritarian regime has come to power, adherence to the ECHR has not dissuaded it from trampling on human rights. When the Greek colonels faced an ECHR ruling about the use of torture, Greece simply withdrew from the convention. Russia was expelled for the full-scale invasion of Ukraine, not for its rampant domestic human rights violations. Belarus abandoned its observer status rather than implement convention rights. Both Azerbaijan and Turkey have gone pretty far down the road to authoritarian regimes while still remaining in the convention. It is little known, but one reason that France did not even ratify the convention until 1974 was that it was aware of the use of torture and other abuses of human rights during the war in Algeria and had other reasons afterwards for remaining outside. Indeed, it did not allow its citizens to take cases to Strasbourg until 1981 but suffered little opprobrium for that.

The claim that if Britain left it would be joining Belarus and Russia is puerile. We would be joining other common-law countries, including democracies such as Australia, New Zealand and Canada, which uphold human rights without relying on a supranational court. Like them, we would make our laws democratically, not hand over the right to make laws to an international court, giving it the power to legislate rather than enforce the law.

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Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I join others in warmly commending the noble Lord, Lord Alton, for securing this debate and for his excellent speech, which has set off a very valuable debate. The noble Lord is a true liberal, whatever his current location. It is unusual for a Member of the House of Lords to have the honour to chair the Joint Committee on Human Rights, but it is a tribute to him and an honour for this House that he does so. I should record my interest, which is in the register, as a vice-president to my friend the noble Baroness, Lady Kennedy, of the organisation Justice.

We have heard voices today calling for the UK to leave the European Convention on Human Rights, or at least to seek to change it or the Human Rights Act. Do we really want our country to be bracketed with outlaws such as Russia, Belarus and Hungary in ignoring and rubbishing human rights? That would be a regressive and deplorable step.

I agree with the comment by Amnesty—and I do not always—that the conduct of the current Russian Government should be a reminder to us all of our good fortune to live in a country with respect for the rule of law and which, in the main, complies with the rulings of independent courts. The UK leaving the convention would be exactly what Putin wants.

The convention, and the court system that it is attached to, forms a core part of the framework of the long-standing international alliance of states gathered together in the Council of Europe, dedicated to the pursuit of the common goals of human rights, democracy and the rule of law. I commend noble Lords, including my noble friend Lady Brinton, who take part in the Parliamentary Assembly of the Council of Europe, which I have never had the honour to do.

I point out to the noble Lord, Lord Lilley—I am grateful he is still in his place, as I know he has other commitments—that Commonwealth countries are not in the ECHR system because they are not, except for Malta, Cyprus and the UK, located in Europe.

Lord Lilley Portrait Lord Lilley (Con)
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I am grateful to the noble Baroness for replying to that point. The point is that they do not rely on an international agreement to provide very good human rights to their citizens. Why should we be different?

Baroness Ludford Portrait Baroness Ludford (LD)
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I think answering that might set up another mini-debate, and I am not going to be tempted to go down that road.

For a major power such as us, a founding member of this European system, to leave the convention—and thus the Council of Europe, a point made by several noble Lords—would sow division and confusion among liberal states just when we need solidarity. It would demonstrate that the protection of individual rights against the excesses of state power is an unimportant and futile endeavour.

Indeed, our membership, along with that of all the other liberal democracies in Europe, of the council and its convention is part of the system of regional security that is so vital now. It creates the preconditions for peace through the promotion of democracy, the rule of law and human rights, and helps inoculate people and Governments against the pernicious propaganda coming out of Moscow and elsewhere.

The ECHR is not some remote, foreign product to be resisted as an imposition. That point was made by one noble Lord—I apologise, but I have forgotten who. We should celebrate the fact that the UK has played a pivotal role in not only creating but shaping the ECHR. I noted that several of the lawyers involved, such as the noble Lord, Lord Alton of Liverpool, seem to come from Merseyside. That must be a fertile source of human rights inspiration. Our judges continue to contribute to the future of the convention system and the wider protection of human rights. I hope that the Government will highlight the UK’s role and work to combat negative rhetoric, misrepresentation and misunderstanding.

The UK’s commitment to the ECHR, and more widely to the rule of law, boosts not only our international reputation but our attractiveness as a place to do business, by emphasising that individual and business rights are protected. Our commitment to the international rule of law underpins our global economic competitiveness and attractiveness as a destination for investment, which the Government are rightly emphasising. It is also part of the Government’s growth mission.

I was intrigued to read an article in the Times this week by the noble Lord, Lord Hague of Richmond. He is not in his place but, as this article was published, I feel able to comment on it without being discourteous. The article’s headline began, “I'm no fan but”, and such a “but” always puts one on notice. His declaration that

“Trump’s effect may be positive … prompting a startling realignment of ideas”


was a jolt, because I must confess that I can see nothing positive coming from President Trump. One of the positive nudges that the noble Lord felt was a result of President Trump was that the ECHR should be rewritten. He did not say how. If he meant that it would be rewritten only in the way that the noble Lord, Lord Carter, referred to, that might be sensible. We are all open to any useful reforms.

The noble Lord, Lord Hague, then confused me by stressing that these actions of Trump are

“a reminder that an effective democratic state is part of a moral order in which its policies should be anchored; that its reach and respect in the world rely on being able to distinguish right from wrong; that the abuse of great power brings resistance and rejection”.

I thoroughly agree with the noble Lord in those remarks. My contention would be that, far from rewriting the ECHR as a reaction to President Trump, we should treasure it all the more as guarding against the kind of developments that, sadly, we are seeing in the United States.

The Human Rights Act brought rights home, as has been said. It was one of the products of the talks on political and constitutional reform 30 years ago between Labour and the Liberal Democrats, known as the Cook-Maclennan talks—after Robin Cook and Robert Maclennan. I am very proud of that and other products. I was delighted to hear the noble and learned Baroness, Lady Hale, stress the value of the Human Rights Act.

We have heard that applications to Strasbourg have been on a general downward trend over the last 10 years. The Human Rights Act has contributed to that, as a lot of those cases have not gone to Strasbourg but have been settled domestically. In 2024, there were only three cases against the UK heard by the court, and only one found a violation. The victor was the Daily Mail, in a freedom of expression case. There were no interim measures or injunctions issued against the UK last year. This is a testament to the strength of our national system of human rights protections. One of the reasons for this harmonious state of affairs is that a productive dialogue has taken place between the Strasbourg and UK courts to deal with any tensions or disagreements. This was confirmed in the remarks of the noble and learned Lord, Lord Neuberger, and the noble and learned Baroness, Lady Hale.

For some people, no bill of rights, whether the European Convention or any other, will be acceptable in the UK system of a political constitution and parliamentary sovereignty. These arguments are always presented as concerns about democracy and democratic accountability. However, they almost always end in arguments for centralising power in the Executive. A lot of human rights challenges are to call the Executive to account. References to the court going too far as a reason to leave the convention system more generally are almost always based in choosing to emphasise the occasional controversial case where the speaker disagrees of the outcome.

Like the noble Lord, Lord Hannay, I emphasise that any upset to our relationship with the ECHR would affect the Belfast/Good Friday agreement, which is a crucial instrument. Under that agreement, the UK Government committed to the incorporation of the convention into Northern Irish law. Proposals to legislate for the continued application of the convention into Northern Irish law while withdrawing the UK as a whole from the convention are fundamentally flawed, and there is no practical way of legislating for partial implementation.

In addition, the UK is obliged under the Windsor Framework, following our withdrawal from the EU, to observe a non-diminution of rights as set out in the Belfast/Good Friday agreement. There are also, as the noble Lord, Lord Hannay, said, commitments in the trade and co-operation agreement to our continued adhesion to the ECHR. Any damage to our human rights observance could imperil the renewal of our data adequacy agreement, crucial to both business and law enforcement co-operation with the EU. For all these reasons, we should not imperil our positive engagement with the European convention and court but instead celebrate our great achievement and good fortune in creating it and sustaining it for 75 years.

Prime Minister: Meeting with Prime Minister of Canada

Lord Lilley Excerpts
Wednesday 12th March 2025

(3 weeks, 1 day ago)

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Baroness Chapman of Darlington Portrait Baroness Chapman of Darlington (Lab)
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My Lords, the UK and Canada are of course the closest of allies. We have a proud history of partnership built on shared values. We share a sovereign; we are among the oldest parliamentary democracies in the world; and the British and Canadians fought bravely alongside one another in two world wars, and in nearly every major conflict for more than a century. It should go without saying that the future of Canada lies solely in the hands of the Canadian people.

Lord Lilley Portrait Lord Lilley (Con)
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Will the Minister express solidarity with the Prime Minister of Canada in his determination that Canada should remain an independent country, making its own laws and trading with its huge continental neighbour on the basis of a free trade agreement that America should respect? Will she also express delight that he has abandoned the advice he used to give to Britain—that, in order to trade with our huge continental neighbour, we should submit to all its laws and join a political union with it?

European Political Community Summit

Lord Lilley Excerpts
Tuesday 12th December 2023

(1 year, 3 months ago)

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Lord Ahmad of Wimbledon Portrait Lord Ahmad of Wimbledon (Con)
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My Lords, they provide an opportunity for agreements to be put in place, such as the UK’s agreements with Albania. Practical suggestions can be shared, and it can be ascertained how successes can be reflected across Europe. It is important when we look at illegal migration to note that there are two sides to the coin. The first is stopping illegal migration, but we also recognise that people migrate to countries for a variety of reasons, including bettering their lives, and some are fleeing persecution. The country that I represent on the world stage has a long tradition of standing up for the rights of the persecuted and that is really where we should be focused. Parties of different colours and different political persuasions have always stood up for that right and it is a proud tradition of our country.

Lord Lilley Portrait Lord Lilley (Con)
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Further to the supplementary question from the noble Lord, Lord Purvis, when the Prime Minister meets other member states, will he discuss concerns that others have about the rulings of the European Court of Human Rights? Will he do so particularly with the French Government, who have announced that they will disregard such rulings and have already begun to do so by sending an Uzbek asylum seeker back to Uzbekistan even though the European Court of Human Rights said that he would stand at risk torture and death? Can he also ask why they get away with it, but it causes a great rumpus here but no concern to the Lib Dems?

Lord Ahmad of Wimbledon Portrait Lord Ahmad of Wimbledon (Con)
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It has often been said that I have an ever-widening brief, and I am now being asked to speak for the French Government.

I shall not take up my noble friend’s offer, but I assure him of two things. First, we do point out the importance of adhering to agreements. Indeed, the United Kingdom is at the top of the league for adherence to the European Court of Human Rights’ decisions. Notwithstanding the criticisms we often get, the action demonstrably shows that the United Kingdom remains a proud holder of the international obligations that we have signed up to.

Lord Lilley Portrait Lord Lilley (Con)
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My Lords, this has been unusual in the debates that we have had so far in that far more has been said that I can agree with than that I disagree with. I even found myself agreeing with two-thirds of what the noble Lord, Lord Kerr, said, which is unusual. He is undoubtedly right that the negotiations cannot really be going as well as we would all like to hope, and as so many commentators and Ministers imply they are, as long as the EU has not been prepared to change its negotiating mandate. It will not allow a single jot or tittle of the protocol to be changed under its existing mandate, even though the protocol itself envisages the possibility of it being changed in part or in whole. That surely has to change. Maybe it has de facto; maybe the EU is agreeing to talk beyond its mandate. Let us hope that that is the case.

The disappointing aspect of the debates so far is that I have been waiting throughout for any coherent response from noble Lords, in their very powerful speeches about the illegality of what we are doing, to the questions raised by the noble Lord, Lord Bew, in particular as to what happens when there is a conflict between two international obligations, as the noble and learned Lord, Lord Brown, implied that there is between the obligations that we have under the Belfast agreement and those that we have under the protocol. I have not heard any direct response to that question: what do you do when you have conflicting international legal obligations?

Lord Pannick Portrait Lord Pannick (CB)
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I am very grateful to the noble Lord but the Committee has heard repeated explanations of what the answer is. The answer is that the protocol contains Article 16, which allows for a process to commence by which disputes can be resolved with an arbitration process. That is the answer. There is no conflict because the protocol provides a mechanism for addressing conflicts.

Lord Lilley Portrait Lord Lilley (Con)
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I am grateful to the noble Lord for sidestepping the question by saying that he does not need to answer it because there is an article in the protocol that means you do not have to answer on what happens when there is a conflict between two international obligations. Clearly, however, the Government and many noble Lords from the Province who have spoken think that there is a conflict and it cannot be solved just by invoking Article 16. If it can, fine; that is wonderful.

The other related question that we have not had a response to is the point made by the Lord Chancellor in the other place that Article 1 of the protocol specifically says that in the event of a conflict between the Belfast agreement and the protocol, the Belfast agreement takes precedence. I have not heard any response to that, nor to the point, which I might be alone in making, that the whole protocol is intrinsically temporary. We know that because the EU told us that it could not enter into a permanent relationship with us because we were then a member state and it could not, under Article 50, enter into a permanent relationship with a member state; it could be only temporary and transitional. That is why the protocol itself contains provision for it to be superseded, but I have heard no response to that point from anyone.

Baroness Altmann Portrait Baroness Altmann (Con)
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I heard the responses given to my noble friend so far, which he seems reluctant to accept. If he does not agree that the Article 16 process would be a way of resolving some of these conflicts that have arisen and caused problems, in what way does he feel that the passage of the Bill would itself resolve those conflicts, or indeed support the Good Friday agreement?

Lord Lilley Portrait Lord Lilley (Con)
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I certainly do not say absolutely that Article 16 is not the way to proceed, but I have spoken to lawyers much respected by people in this House—unfortunately I do not have their permission to give their names—who told me that we should not go down the Article 16 route because it would be a nightmare.

Lord Lilley Portrait Lord Lilley (Con)
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I will put the two in touch discreetly and thereby not betray confidences.

Lord Pannick Portrait Lord Pannick (CB)
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I am sorry to interrupt the noble Lord and I am grateful for his patience, but it really is not good enough, when this Committee is debating these matters, for him to say that there are problems in using Article 16 but not tell us what they are.

Lord Lilley Portrait Lord Lilley (Con)
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I am saying that there may well be problems. Indeed, I asked the noble Lord the other day, down the corridor, whether he was of the opinion that Article 16 could be used to solve all the problems. If it can be, fine; I am not ruling that out. However, if it cannot be, then the issue raised by the noble Lord, Lord Bew, is there on the table, and the issue raised by the Lord Chancellor is there on the table. Whatever about that, the protocol is intrinsically temporary. The whole basis of the negotiations that we entered into on the withdrawal agreement was that a permanent agreement could not be entered into in the withdrawal Act with the United Kingdom covering trade or other matters; that could happen only after we had left. Therefore, anything in the withdrawal agreement was intrinsically transitional and temporary.

Again, I have not heard a response on that today. I wait to be interrupted with a response to the point. Usually, it comes from the noble Lord, Lord Kerr, who wrote Article 50, but he has forgotten what the alternative is.

These are important issues. We need to know why we were told one thing, that this was temporary, and now are told another thing, that it is permanent. Until we get an answer to those questions, I do not know that our debate can proceed as productively as it ought to. There are other more general points which I would like to make but I will save them for another batch of amendments.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, this has indeed been a very wide-ranging debate, but I will comment specifically on the amendments themselves.

The DPRRC refers to the power contained in Clause 18 as “strange” and notes that

“Despite its being highly unusual”


there will be “no parliamentary oversight” whatever. This was the subject of some debate in another place, with much head-scratching as to what the Government were trying to achieve. Indeed, we cannot know that, because they have not offered a clear justification. A former head of the government legal service, Sir Jonathan Jones KC, described this as a “do whatever you like” power, but why is it needed in the first place? We have no definition of “conduct”. Can the Minister have a go at giving us a definition today? If that is not possible, can we have a detailed explanation ahead of Report?

In the Commons, the Minister tried to insist that concerned MPs had misconstrued the intent and that Clause 18 simply makes clear that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation. I cannot remember any other legislation where the Government have felt it necessary to clarify that Ministers are acting lawfully. Until recently, we took it for granted that this was always the case. Therefore, is this power an admission that the Government’s approach to the protocol is incompatible with international law and, as a result, in conflict with the Ministerial Code’s requirements to comply with the law?

There were a number of very interesting contributions in this debate. I highlight that of the noble Lord, Lord Empey, which was very constructive, about bringing into the process which is being embarked on by the UK Government respected people from Northern Ireland. I am interested to hear the Minister’s reaction to the proposals made by the noble Lord. The noble Lord, Lord Kilclooney, gave a rather chilling example of the stakes we are dealing with and how important it is that we take every opportunity we possibly can to resolve the current position. This has been an interesting debate, and I look forward to the Minister’s response.

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Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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I am grateful to the Minister.

When the noble Lord, Lord Kerr, says that he is miles away from the situation, I have known him long enough to suspect that there is a wee bit of code there. He is probably actually pretty close to knowing what is going on, and I suspect that he is right. I worry, because the Government are not engaging widely, as the noble Lord, Lord Empey, said, or consulting. We have not had sight of what is on the table; we know what the EU has put on the table but not what the UK Government have put on the table. My fear is that, if the Government told us what was on the table, many people would be disappointed that they are only technical talks. Some people want them to be negotiations.

That comes on to the point made by the noble Lord, Lord Lilley. I respect and understand his disagreement with the Government’s position—the Government want to mend it, not end it, and, as I understand it, the noble Lord thinks there is a more substantial issue with that. Ministers have said they want to fix it, not nix it. If you want to mend it, not end it, there are mechanisms, but there are also mechanisms if you want to end it. As Article 13 of the protocol states, it lasts as long as it lasts:

“Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes”—


so, if there is another treaty, this ends. There is nothing special about that; that is every treaty. A treaty lasts for as long as it lasts, and if there is a subsequent treaty then there is a subsequent treaty. So the noble Lord’s beef is not with us; it is presumably with the Government in order to open up the element of the withdrawal agreement and the associated TCA that he thinks are in contradiction.

Lord Lilley Portrait Lord Lilley (Con)
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Would the noble Lord deal with the Article 50 point? If it is intrinsically temporary and transitional, can it last for ever?

Baroness Ritchie of Downpatrick Portrait Baroness Ritchie of Downpatrick (Lab)
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My Lords, there has been much discussion today, and it goes back to the issue of democratic deficit and how we deal with what Northern Ireland’s public representatives cannot deal with. There is a very simple solution. Under the Good Friday Agreement and the Northern Ireland Act 1998, amended by the Northern Ireland (St Andrews Agreement) Act 2006, provision was made for the institutions according to a three-stranded approach: the Northern Ireland Executive and Assembly, the North/South Ministerial Council, and the British-Irish Council, with east-west, north-south, and internal to Northern Ireland being addressed.

At the moment, we have no Northern Ireland Assembly, no Northern Ireland Executive and no North/South Ministerial Council that would hold these matters to account and address that democratic deficit. I would say to the DUP: there is a duty and an obligation to ensure, working with all the parties in Northern Ireland and both Governments, that those institutions are up and running. That will allow all of these issues to be adequately addressed by the MLAs who were duly elected in May.

Lord Lilley Portrait Lord Lilley (Con)
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My Lords, I rise to support the noble Lord, Lord Leigh, but, before doing so, I repeat what I said the other day: I feel extreme discomfort about the extensive reliance on Henry VIII clauses in this legislation. I sit near enough to the Convenor to almost feel partly convened on the issue of Henry VIII legislation: he and the noble Viscount, Lord Hailsham, did suggest how this particularly egregious example of it could be constrained a little. However, I think neither was here when I posed the question of what the structural alternative was, in the context of negotiations, to relying on Henry VIII legislation. I still await a satisfactory answer to that question.

To return to the point made by the noble Lord, Lord Leigh, I share an interest with him in the EIS, because I was the Secretary of State who introduced them. I had forgotten that I was until he reminded me. Indeed, slightly earlier, when I was invited to speak on the 25th anniversary of their formation, I found that I was the warm-up act for Mike Yarwood at that event. But they are important and have been useful. They, at present, will cease under EU legislation unless that EU legislation ceases to apply in this country.

I want to make a general point, which I made earlier: the protocol is intrinsically temporary under European law. The Europeans themselves said, while we were negotiating the withdrawal agreement, that they could not, under Article 50, enter into a permanent relationship with the United Kingdom. Any arrangements reached under that agreement could only be temporary and transitional. Consequently, the protocol is transitional and temporary and not permanent. Indeed, in Mrs May’s protocol, it specifically said in the recital that the withdrawal Act, which is based on Article 50, does not aim to establish a permanent future relationship between the EU and the UK.

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Lord Pannick Portrait Lord Pannick (CB)
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It is elementary as a matter of diplomacy and of international law that a country is perfectly entitled to reach a new agreement in the circumstances as they then exist. That is what happened when the protocol was agreed. Both sides agreed a mechanism in Article 18 for ensuring democratic consent.

Lord Lilley Portrait Lord Lilley (Con)
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I am grateful to the noble Lord for effectively giving way. He rightly said, both in his letter to the Times and his remarks today, that, as long as there was good faith, fair enough, but if good-faith negotiations failed to reach an agreement—not if there was any lack of good faith, I think—we would be entitled under Article 62 to repudiate the treaty.

Certainly, the EU is showing a lack of fulsome good faith in two respects. First, it is refusing to accept in the current negotiations that any change to the protocol can be made—only to its implementation. Secondly, it is repudiating its original position that it could not enter into a permanent arrangement, which was the whole basis of the negotiations we entered into under Article 50. It is now trying to make something which was intrinsically temporary, and which it said could be only temporary and provisional, into something permanent. I would have thought that, in both respects, had the British Government taken such positions, he and his friendly noble Lords would have denounced it as an appalling demonstration of bad faith.

Lord Pannick Portrait Lord Pannick (CB)
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If the noble Lord’s position is that the EU is acting in bad faith, the United Kingdom, if it takes that view, is perfectly entitled to use the procedures set out in the protocol of independent arbitration—if it does not like that, it can go to the Court of Justice—to resolve any dispute. What the United Kingdom cannot do is ignore the dispute resolution mechanisms that are set out in the protocol and simply make an assertion that it thinks there is no good faith. Indeed, I had not understood it to be the position of the Government at the moment that there was no good faith. They are about to enter into negotiations.

Lord Pannick Portrait Lord Pannick (CB)
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I completely agree with the noble Lord, particularly in relation to his tribute to the noble and learned Lord, Lord Judge. In his absence—as his junior as it were—I draw this Committee’s attention to the quite extraordinary report of your Lordships’ Delegated Powers and Regulatory and Reform Committee to which reference has been made before, particularly at Second Reading, but it bears repetition. Its seventh report of this Session says at paragraph 4 that this is

“a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms.”

It continues:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament”.


That is quite an extraordinary criticism of this legislation. It is made not by novices but by highly experienced and respected Members of your Lordships’ House across party lines. I find it deeply regrettable that the Government should think it appropriate to continue with a Bill that has attracted such cross-party criticism.

Lord Lilley Portrait Lord Lilley (Con)
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My Lords, I came into Parliament nearly 40 years ago and was told first of all that you should never ask a question to which you do not already know the answer. Now that I have been here so long, I feel that I can take the risk of asking some questions to which I do not know the answer, about a very important aspect of the Bill that has just been raised by the noble Lord, Lord Pannick.

There are two criticisms of the Bill, the first being that it is allegedly against international law. I do not believe that and have not really heard any answers to the points raised by the noble Lord, Lord Bew. What happens when you have two conflicting international obligations? The second criticism is that it relies, very largely and to an almost unprecedented degree, on Henry VIII clauses. Historically, I am very reluctant to rely extensively on Henry VIII clauses, and I was rather shocked by the committee report to which the noble Lord, Lord Pannick, has just referred.

The questions that I want to ask, and to which I do not know the answer, are: first, what is the alternative in the context in which we are to have open-ended Henry VIII clauses; and secondly, why did the Government not adopt that alternative? I assume that the alternative to the Henry VIII clauses is to spell out in detail, in primary legislation, what you intend to do, but the context in which we are doing it is that we are simultaneously legislating and negotiating.

The noble Lord, Lord Purvis, said that we cannot do that. It seems to me perfectly compatible with the doctrine of necessity to do that. We have to do something, we need the power to do something, we have taken the legal power to do something, but we would like that something to be negotiated if possible. So we are simultaneously negotiating and legislating. If we spell out in primary legislation, in detail, the outcome that we want to get, in the context of a negotiation that involves give and take, we either have to spell out the maximum we want—what we want to take without any give—or the minimum we are prepared to accept: what we are prepared to give without any prospect of taking.

In this unusual situation of having to have the legal powers to act while we are negotiating and hoping for a negotiated solution, I am not sure what alternative there is to what the Government have done. I would be grateful to hear what noble Lords would do who share my reluctance to rely on Henry VIII clauses. Effectively, we are saying we are recreating the royal prerogative in the negotiation, giving the Government a free hand, while giving them the power to take legislative action if those negotiations do not achieve a satisfactory result.

Shortage of Workers

Lord Lilley Excerpts
Wednesday 6th July 2022

(2 years, 8 months ago)

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Lord Lilley Portrait Lord Lilley (Con)
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My Lords, does the Minister accept that a general shortage of labour is a symptom of excess demand? You cannot assuage that by importing labour from abroad for the simple reason that workers not only produce but consume goods and services. The extra demand they create exactly equals the extra demand they assuage.

None Portrait Noble Lords
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Oh!

Lord Lilley Portrait Lord Lilley (Con)
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That is why, when Tony Blair justified opening our boundaries to free labour from eastern Europe because there were 1 million vacancies, 3 million more people entered but there were still 1 million vacancies.

Baroness Stedman-Scott Portrait Baroness Stedman-Scott (Con)
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I wonder whether the noble Lord will allow me to read Hansard and respond to him in writing.

South Africa: Just Energy Transition Partnership

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Thursday 30th June 2022

(2 years, 9 months ago)

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Lord Ahmad of Wimbledon Portrait Lord Ahmad of Wimbledon (Con)
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My Lords, I assure noble Lords that we are doing exactly as the noble Baroness suggests. We are talking to other partners and I pay particular tribute to the current COP president, Alok Sharma, who has championed this issue. In recent weeks, I have also had the opportunity to visit Egypt as part of my portfolio. The discussions with Foreign Minister Shoukry, the president of COP 27, centred around how we can take our learning and experience, including new, innovative structures, to make sure that they can be practically applied in Egypt as well.

Lord Lilley Portrait Lord Lilley (Con)
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My Lords, my pre-parliamentary career was working in developing countries on aid and development programmes and my African friends have driven home to me that the precondition of economic growth in Africa is not aid or trade, welcome as they are—and, still less, patronising advice from the West—but cheap and reliable electricity. Again and again they say that. If they have the opportunity of investing in renewables, and it is cheapest when backed up with other electricity from hydro or fossil fuels to provide reliability when the sun does not shine or the wind does not blow, they will choose it without any advice from us. Is it not hypocritical and damaging of us to cut off finance for them if they want cheaper, fossil-based electricity?

Lord Ahmad of Wimbledon Portrait Lord Ahmad of Wimbledon (Con)
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My Lords, again, my noble friend speaks with great insight and expertise, and I agree in the sense that this should not be in any way prescriptive. It should not mean the developed world preaching to the developing parts of the world. As I said earlier, it is about localised buy-in and real management and ownership of this transition by the country we are dealing with. Every transition is difficult, particularly in developing parts of the world. Of course, the ultimate case is to keep the lights on and ensure that the energy required across a given country is provided.

Queen’s Speech

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Wednesday 18th May 2022

(2 years, 10 months ago)

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Lord Lilley Portrait Lord Lilley (Con)
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My Lords, on the “Today” programme on Radio 4 on Friday the Irish Foreign Minister, Simon Coveney, asserted that “the EU cannot and will not renegotiate the Northern Ireland protocol”. In fact the EU can, should and must renegotiate it. It can renegotiate because any treaty can be renegotiated, and many are. It should renegotiate it because the sole justification of the protocol was to uphold the Belfast agreement, and the first article is that nothing in the protocol shall prejudice the Good Friday/Belfast agreement. As the former Solicitor-General, Sir Robert Buckland, said yesterday,

“that means … that the … agreement takes primacy over the protocol”,—[Official Report, Commons, 17/5/22; col. 554.]

so the British Government, as co-guarantor of the agreement, have a duty to renegotiate the elements of it which are undermining the Belfast agreement.

The main point I want to make in the five minutes that I have is that the EU must renegotiate the protocol. It must because, legally, the protocol is not a permanent arrangement: it must eventually be replaced or it will lapse. That is not my opinion or the Government’s opinion; it was the whole basis on which the EU negotiated the withdrawal agreement: that, under Article 50, it did not have the competence to negotiate a permanent trade and co-operation agreement with a member state. Article 50 allowed it only to negotiate the divorce terms and temporary or transitional arrangements to smooth the departure of a member state. It said that a permanent trade relationship could be agreed under Article 218 only with a non-member state. That is why the EU refused Mrs May’s request to negotiate the trade and co-operation agreement in parallel with the withdrawal agreement. The UK had first to leave the EU, agree to sign the withdrawal agreement and become a non-member state before negotiations on a permanent trade and co-operation agreement could even begin, so how come there was a trade and co-operation agreement covering Northern Ireland?

The Northern Ireland protocol could be agreed under Article 50 only because and so long as it was temporary; it was needed to smooth departure, not least because there was no certainty that a permanent trade and co-operation agreement between the UK and the EU would be in place by the time we left the EU. That should not be news to us because the former Attorney-General Geoffrey Cox explained to the House of Commons that,

“article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states”. —[Official Report, Commons, 3/12/18; col. 547.]

He went on to say that, if traders in future felt disadvantaged by the protocol, they should

“beat a path to the door of the Commission and the Court … to say, ‘Didn’t you say that article 50 is not a sound legal foundation for this arrangement?’ And I tell you frankly, Mr Speaker, they are likely to win.”—[Official Report, Commons, 3/12/18; col. 555.]

The original protocol itself spelled out that

“the Withdrawal Agreement, which is based on Article 50 TEU, does not aim at establishing a permanent future relationship between the Union and the United Kingdom”.

That is equally true of the protocol in the final withdrawal Act, since it, too, is based on Article 50. Paragraph 8 of Article 13 of the protocol itself specifically envisages the replacement of all or parts of the protocol by a subsequent agreement. Nor does the provision in the final protocol for approval or rejection by the Northern Ireland Assembly alter the issue; even if the Assembly were to endorse the arrangements set down under the protocol, which was an agreement between the EU and the whole UK, not just Northern Ireland itself, that would not change its transitional nature.

The temporary nature of the protocol is a matter of EU law. I am puzzled that its author never remembers that nowadays. He and all the other spokesmen of the European Union in this House suffer from a selective memory and treat this protocol as if it is to be permanent and cannot and should not be changed, even if undermines the Belfast agreement, which was the very purpose of that protocol. Of course, I give way to the noble Lord, my former good friend.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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It is just possible that the noble Lord is confusing two versions of the protocol —the one negotiated by the previous Prime Minister and the one negotiated by the present Prime Minister. The previous Prime Minister’s protocol was, on the face of it, clear, straightforward and temporary. The present Prime Minister’s protocol is permanent.

Lord Lilley Portrait Lord Lilley (Con)
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The transitory nature of both protocols arises from Article 50, which the noble Lord himself wrote—and if he wishes to repudiate that and say that Article 50 does not mean what the European Union says that it means, that would be an interesting thing to do. If the European Union were now to change its view and say, “We were conning you and having you on when we said that we couldn’t negotiate a permanent arrangement under Article 50”, it would show that the original treaty was based on negotiations in bad faith, and that would give us a basis to seek renegotiation.

More positively, we should look to the EU to negotiate and renegotiate with the same spirit and the same objective that it did the original protocol: to uphold the Belfast/Good Friday agreement in all its parts. I welcome the fact that the British Government are moving forward on that basis.

Northern Ireland Protocol

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Tuesday 17th May 2022

(2 years, 10 months ago)

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Lord Ahmad of Wimbledon Portrait Lord Ahmad of Wimbledon (Con)
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My Lords, one thing I have learned in diplomacy is that you can reconcile everything. It is about having the vision and also the commitment to find an agreement. That is certainly the intention of the United Kingdom Government. We will continue to work with our colleagues and friends across the European Union to find solutions to the issues of the protocol. We do not have a functioning Executive; people are taxed differently from everyone else in the UK; you cannot access the same financial benefits; and laws and courts in Northern Ireland are different from elsewhere in the UK. These are practical problems. They must be addressed. We will continue to work with the EU in good faith. But from a personal perspective: where there is a will, you can find a way, and one hopes we can do exactly that.

Lord Lilley Portrait Lord Lilley (Con)
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My Lords, as the former Solicitor-General Sir Robert Buckland said in another place, the very first article of the protocol says:

“This Protocol is without prejudice to the provisions of the 1998 Agreement”.


So the Belfast/Good Friday agreement take precedence over the protocol. The UK, as guarantor of the Belfast agreement, has not just a right but a duty to ensure that elements of the protocol that threaten the Good Friday agreement are changed, as envisaged in Article 13 of the protocol. If the EU resists this—I hope it will not—it will be acting against both the letter and the spirit of the protocol.

Lord Ahmad of Wimbledon Portrait Lord Ahmad of Wimbledon (Con)
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My Lords, my noble friend has detailed what my right honourable friend Robert Buckland said, and I totally agree. As I said, the position the Government are taking is about not scrapping the protocol but addressing the very issues that are not consistent with the important agreement that was reached by all in Northern Ireland: the Belfast/Good Friday agreement. We need to ensure that it is upheld.