Brexit: Withdrawal Agreement and Political Declaration

Lord Low of Dalston Excerpts

Thursday 10th January 2019 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I spoke about Brexit a few times both before and after the referendum but, as the heavyweight reports to take cognisance of began to pile up, I have been content to leave the heavy lifting to genuine heavyweights such as my noble friends Lord Kerr and Lord Hannay. But at such a momentous juncture in our nation’s affairs, it seems imperative that one should stand up and be counted.

The noble Baroness, Lady Kennedy of Shaws, told me that she had voted against the Third Reading of the withdrawal Bill, although the Opposition considered that to be something of a self-indulgence, because she felt that it was important to have on the record where she stood when the history of these things came to be written. I felt very much the same way but, unfortunately, was not able to be present to vote. I am therefore speaking today to put that record straight.

I remain a pretty unashamed remainer, believing that the country has been guilty of an astonishing act of self-harm from which it needs to be rescued, if at all possible. I say this not just on the grounds of the economic damage it will do, although there is virtual unanimity that it will certainly do that. I am thinking here not so much of the hit to individuals’ living standards as the progressive starvation of resources for public services and social progress. What concerns me even more is the “go it alone” mentality of the Brexiteers which turns its back on internationalism and a spirit of co-operation, which is the only way to make it in today’s world.

There has been consensus in the debate that there are four possible ways forward: Mrs May’s deal, no deal, something else or a people’s vote. Let us dispose of the no-deal option. Those who advocate leaving on WTO terms maintain that Britain has grown its exports to the more than 100 countries with which it trades on WTO terms three times faster than its exports to the EU. To begin with, we should always be wary of statistics that quote comparative growth rates without reference to the level from which the growth started. More importantly, this has been entirely consistent with EU membership. Where is the evidence that we would do any better by leaving the EU? The EU cannot discriminate against WTO members but it cannot discriminate in favour of them either. As the noble Lord, Lord Kerr, pointed out, in the event of no deal, far from protecting us from retaliation, WTO rules would oblige the EU to impose the same tariffs and non-tariff barriers on UK goods as it does on those from any other third country. Under WTO rules, the UK could cut tariffs and other barriers to zero for imports from the EU but only if it did so for all other countries as well, which would interfere with our ability to negotiate the trade deals with other countries to which Brexiteers look for so much. Therefore, it is far from clear that the grass is any greener under no deal and WTO.

Mrs May’s deal has few friends but in some respects it is the least worst option—as the noble Lord, Lord Grocott, said, it is the softest of soft Brexits. Yet by common consent it is worse than what we have at the moment. In fact, everything is worse than what we have at the moment. The Prime Minister has therefore been extraordinarily irresponsible in running the clock down in order to set up a choice between her deal and no deal as the only option. If the Prime Minister’s deal is not acceptable there needs to be space to consider other options, such as Norway or a people’s vote, together with any necessary preconditions such as revocation or suspension of Article 50. I am glad to see that the House of Commons is at last being more assertive in seeking to take some control of these issues. Although it is tempting to support the Prime Minister’s deal in preference to no deal, it should be rejected to provide space for returning the issue to the people—the only way of breaking the parliamentary deadlock. I shall therefore support the Motion in the name of the noble Baroness, Lady Smith.

I have come to be more troubled than I was by the arguments against a people’s vote—in terms of damage to democracy and trust in politics—but otherwise I do not have much time for them. It is not a second referendum: it is a referendum on a different question in the light of greater knowledge, so this is really the least worst option, as the noble Lord, Lord Kerr, has said.

I have a friend who said that he put aside his principled objections to referendums in the pragmatic belief that remain would win. I am prepared to put aside my principled objections to referendums in the pragmatic belief that a second vote is the only way of getting ourselves out of the mess we have got ourselves into. I bumped into the noble Lord, Lord Kinnock, the other day. We were both bemoaning the state we had got ourselves into but he said that it might just come out all right. I said, “It might just come out all right if everything goes wrong with the way the Government are trying to manage things”, and I rather hope it does.

European Union (Withdrawal) Bill

Lord Low of Dalston Excerpts

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

[Lord Low of Dalston (CB)]

I wonder whether the noble Lord could clarify something. He has been referring to Amendment 83A in terms which suggest that he is under the impression that it is a government amendment. In fact, I will move it in a few minutes. Is he perhaps thinking of Amendment 83C?

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Moved by

[Lord Low of Dalston]

83A: Schedule 7, page 52, line 16, leave out “section 7(1), 8 or 9” and insert “this Act”

[Lord Low of Dalston]

My Lords, I thought we would never get there. I shall speak also to Amendment 83E. These amendments have been drafted by the Equality and Human Rights Commission, and I should declare my interest as having just been appointed to the disability advisory committee of the EHRC. I have retabled these amendments to give full effect to the Government’s commitment that current protections in the Equality Acts of 2006 and 2010 will be maintained once we leave the EU. As the Minister knows, I have concerns that powers in the Bill could be used to change fundamental rights currently protected by EU law.

Noble Lords who have followed this debate will know that the Government tabled an amendment in the Commons in response to calls for the Bill to include a commitment to ensure current protections in the Equality Acts of 2006 and 2010 will be maintained after Brexit. This is now enshrined in paragraph 22 of Schedule 7. However, as I have said before, this does not properly fulfil the Government’s commitment to maintain current equality protections. Amendments 83A and 83E put this right by requiring a ministerial statement that secondary legislation made under the Bill does not reduce protections under equality legislation.

I take this opportunity to thank the noble and learned Lord, Lord Keen of Elie, for taking the time to meet the noble and learned Lord, Lord Wallace of Tankerness, and me to discuss our concerns about equality rights after we leave the European Union. Paragraph 22 of Schedule 7 does not fulfil the Government’s commitment because it does not require a statement that current levels of protection will be maintained. It merely requires the Minister to explain whether and how equality legislation has been changed, and that due regard has been paid to the need to eliminate conduct prohibited by the Equality Act 2010. There is nothing to stop the Minister, having had due regard to this need, deciding to reduce protections anyway. The duty to have due regard is already a requirement under the public sector equality duty, and the Minister’s statement will do no more than simply confirm that they have partially complied with an existing statutory duty.

The requirement focuses on the first duty in the public sector equality duty: to have regard to the need to eliminate discrimination. However, the public sector equality duty also includes other duties: to have regard to the need to advance equality of opportunity and to foster good relations. The focus on just one aspect of the PSED, rather than the whole, risks confusion about whether Ministers are obliged to fully comply with the whole public sector equality duty, as opposed to just this single limb of it. This must be rectified to ensure clarity and compliance with existing statutory duties.

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[Lord Low of Dalston]

My Lords, I am grateful to the Minister for his reply and to all those who have spoken—my co-signatories to the amendment and also the noble Lord, Lord Dykes, and the noble and learned Lord, Lord Goldsmith, to whom I am very grateful for his remarks. I should say that the advisory committee was making six appointments, so perhaps it was not as difficult as it sometimes is to be appointed. I should also say that it is a very strong line-up of other people who have been appointed, so it will be a privilege to serve among them. I particularly want to draw attention to the outstanding qualities of the others who have been appointed; it is not just me.

European Union (Withdrawal) Bill

Lord Low of Dalston Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

Another anomalous result would be if, after exit, EU citizens are protected by the charter while UK citizens are not. Article 4 of the draft withdrawal agreement suggests that that may well be the case. I think that we can rely on the European Parliament, which demanded in a resolution a year ago that the withdrawal agreement must be in conformity with the treaties and the charter, failing which it will not get the consent of the European Parliament. We could discover that a next-door neighbour who is an EU citizen continues to enjoy the benefits of the charter of fundamental rights under the withdrawal agreement, while we do not.

[Lord Low of Dalston (CB)]

My Lords, I think that we are probably reaching the end of the debate.

[Baroness Ludford]

I am just concluding my remarks. I want simply to support what was said by the noble Baroness, Lady Lister, about the importance of the Northern Ireland issue. You cannot have differing rights on each side of the border. The European Commission has said that the Good Friday agreement requires equivalent standards of protection of rights on both sides of the border. I simply remind noble Lords that Jacob Rees-Mogg has opined that EU sanctions for breach of the withdrawal agreement would go against the EU’s own charter of fundamental rights. The irony and hypocrisy of that statement require no elaboration from me.

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[Lord Low of Dalston]

My Lords, despite the Government’s political commitment that equality rights that currently come from Europe will continue once the UK leaves the EU, there is a risk that without embedding the principle of non-regression in the Bill, these rights could be undermined in the future once the minimum standards set by EU law are no longer binding on the United Kingdom. The Women and Equalities Select Committee recognised this risk and recommended that the Bill should explicitly commit to maintaining current levels of equality protection.

The proposed new clause would respect the UK’s constitutional position by applying the same approach as in the Human Rights Act 1998, as we have heard from the noble and learned Lord, Lord Wallace. In particular, it respects parliamentary sovereignty because it would limit the role of the court in relation to primary legislation to making a declaration of incompatibility, rather than invalidating or striking down legislation, as is currently possible under EU law. In that sense, what the new clause proposes is in fact weaker than the current level of protection for equality rights derived from EU law.

What rights might be at risk? While we in Britain should be proud that we have some of the strongest equality law in the world, and in many areas have gone before and beyond what EU law required, some of our important current protections have been driven by developments at European level. Even those that originated in domestic law are often underpinned by EU law. For that reason, they cannot be reduced while we remain in the EU. So when the underpinning of EU law is taken away, there is a real risk that a future Government could seek to chip away at our existing protections. We have already seen this in the Red Tape Challenge, which the noble and learned Lord referred to, under the coalition Government, when the existence of the EU safety net protected much of the Equality Act 2010, but we still saw provisions outside the EU directives being attacked and, in some cases, repealed.

Some of these protections, particularly those that are perceived as financially costly or burdensome to business, might be more vulnerable to repeal under a future post-Brexit Government. Risks that commentators have identified include: the reintroduction of a cap on compensation for discrimination at work; undermining aspects of the prohibition on unfavourable treatment related to pregnancy, which currently reflects the EU position; and chipping away at aspects of equal pay legislation post Brexit. The Beecroft report, which the noble and learned Lord referred to, which came forward as part of the Red Tape Challenge, repeatedly refers to the constraints imposed by EU directives. It recommended that compensation for the loss of earnings part of an award for discrimination dismissal should be capped and that small businesses should be able to opt out of a whole raft of employee rights, including unfair dismissal, the right to request flexible working, flexible parental leave and equal pay audits.

It is possible to anticipate objections that can and might be made to the amendment we are bringing forward—I can almost hear them in my ears before the Minister gets up to speak. The Bill is already transferring or preserving all the equality rights from EU law, so there is no need for this clause—I can hear that being said. The Bill does not transfer the underpinning of these rights currently provided by EU law. At the moment, the rights cannot be removed or diluted except by agreement at EU level. Maintaining the equivalent protection after the UK leaves the EU requires replacing this underpinning with protection in domestic law. That is what the proposed new clause would do.

Secondly, it might be said that this is a new right and that it is not the purpose of the Bill—how many times have I heard that?—to create new domestic rights. The proposed new clause would not create enhanced protection over and above the current position in the UK as a result of our membership of the EU; in fact, it is weaker, because it permits only a declaration of incompatibility rather than the striking-down of incompatible domestic primary legislation, as is currently the case.

Thirdly, it might be said that the clause would create confusion. I can think of two kinds of confusion that might be alleged, the first being that it created a new right which overlapped with the rights in the Equality Acts. However, it would create no such rights; it would merely provide that existing rights could not be removed or diminished. Neither a court nor a Minister introducing a Bill to Parliament should have any difficulty determining whether a new legislative provision removes an existing right in the Equality Acts. It might further be suggested that confusion is caused by introducing a Human Rights Act mechanism normally applicable to convention rights, but the Human Rights Act is not a convention mechanism; it is a domestic law mechanism carefully crafted to strike the right balance between respect for fundamental rights and the principle of parliamentary sovereignty. It is therefore entirely appropriate to adopt the same balancing approach in protecting equality rights.

Finally, it may be said that the proposed new clause will not work because some changes will need to be made to the Equality Acts, but it will not prevent technical changes being made to the Acts such as those referred to by the Government in their paper, Equalities legislation and EU exit. That paper confirms:

“No planned changes to the Equality Acts 2006 and 2010 or secondary legislation under those Acts, using the powers under the EU (Withdrawal) Bill will substantively affect the statutory protections provided for by that equality legislation”.


Such changes can therefore be made without removing or diminishing rights and will not be prevented by this clause. If in the future more substantive changes are required to the rights in the Equality Acts, it remains open to Parliament to make them in accordance with the principle of parliamentary sovereignty. I am entirely convinced of the value of the amendment and am very happy to support the noble and learned Lord, Lord Wallace.

[Baroness Lister of Burtersett]

My Lords, the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Low, have made a strong case. I am perplexed as to what possible argument the Government could make against writing in the principle of non-regression of equality rights, given the numerous assurances they have given to us on their commitment to such rights and given that, as already explained, the amendment was modified to take account of objections raised by the Minister in Committee. I can only think that the Government want to retain some wriggle room for the future.

That suspicion was strengthened when I read in today’s i that the International Trade Secretary has pledged to cut bureaucracy and red tape to promote free trade post Brexit. As we have heard, the Red Tape Challenge removed some equality rights and would have removed even more if our membership of the European Union did not prevent it doing so. As the noble Lord, Lord Low, has pointed out, the Beecroft report, which was part of the Red Tape Challenge, repeatedly referred to the supposed constraints imposed by EU directives. Is it surprising that we are rather suspicious that when those constraints are removed, a future Government might wish to resile from some of these equality rights?

Finally, I will go back to something I have referred to more than once because I think it is so important. At Second Reading, the right reverend Prelate the Bishop of Leeds asked us,

“at the end of this process, what sort of Britain … do we want to inhabit?”.—[Official Report, 30/1/18; col. 1386.]

That is a question that we really must keep coming back to. For me, the principle of equality is absolutely central to the kind of Britain that I want to inhabit when we have—unfortunately—left the European Union.

European Union (Withdrawal) Bill

Lord Low of Dalston Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, all I would say is that the key words in this important amendment are simply “except by primary legislation”. That is why I am glad to support it, because it bolsters what the Prime Minister has already said and promised and it ensures that we cannot have, by sleight of hand, fundamental changes to things that concern so very many people.

[Lord Low of Dalston (CB)]

My Lords, I did not move my Amendment 11A because the noble Baroness, Lady Hayter, had already referred to it in such approving terms. I did not want to take up the time of the House unnecessarily but perhaps your Lordships might permit me a small indulgence to say something about the substance of the amendment. I am also grateful for the endorsement of my amendment by the noble Baroness, Lady Smith of Newnham.

If delegated powers are used to make changes, I underline the importance of construing the list of areas requiring the enhanced scrutiny procedure as including changes to human rights. As the Bill currently stands, such changes can be made without that added assurance. Many areas of human rights are currently protected by EU law, such as rights to privacy under the Data Protection Act 1998 and regulations made under it which give effect to EU law; children’s rights; and protection from trafficking. It is therefore essential that the list of areas requiring the protection of the enhanced scrutiny procedure is understood as including human rights protection in EU retained law.

[Lord Callanan]

My Lords, we now reach a point that has been of considerable interest throughout the Bill’s passage in Parliament: how retained EU law, once it forms part of our domestic law, will be amended and how those amendments can be scrutinised to ensure that rights remain protected. There is no doubt that retained EU law, including EU-derived domestic legislation, retained direct EU legislation and anything saved by virtue of Clause 4 will contain within it important rights and protections that are currently relied upon daily by individuals and businesses. As such, for the Bill to achieve its aim of continuity within UK law following exit day, it is crucial that these rights and protections are not diluted or weakened as we withdraw from the EU.

I believe that that is what the noble Lady, Baroness Hayter, aims to achieve with her Amendment 11, which seeks to put in place an enhanced scrutiny procedure for regulations made under powers that amend retained EU law in certain defined policy areas—both powers in the Bill and those that exist or will exist elsewhere. As we have heard, the policy areas covered are employment, equality, consumer standards, health and safety standards and environmental standards.

As I have said, I understand and support the noble Baroness’s intention to protect this law, and I and my ministerial colleagues have all repeated the Government’s commitment to effective parliamentary scrutiny and to maintaining the UK’s long-standing tradition of upholding the rights and protections in these vital areas. However, I believe the Government have already taken steps to address those concerns, potentially in ways that are even stronger than the noble Baroness’s amendment. Through the package of amendments that we tabled for Report, which will be discussed in more detail on a later day, the Government have actively and constructively responded to the concerns that have been raised in this House and have proposed putting in place suitable protections against the erosion of rights within retained EU law.

For example, by the powers contained in Clauses 7, 8 and 9, modifications to all retained EU law, not just in the specific policy areas listed in Amendment 11, will be subject to numerous scrutiny procedures, including where relevant the new sifting committees within both Houses. Ministers will also have to comply with a number of important statement requirements for each piece of secondary legislation, which will be published in the Explanatory Memorandum when the SI is laid, to explain fully why the instrument has been made for the consideration of Parliament and the public.

The Government, recognising and responding to the concerns on how retained direct EU legislation will be amended beyond the life of the Bill powers, have also tabled further amendments that address the use of existing and future delegated powers to modify this law. These amendments alter the circumstances and procedures concerning how it is or is not possible to amend retained direct EU legislation by other domestic powers, reflecting the hierarchy of EU law. EU regulations and rights that are saved by Clause 4, which are higher up this hierarchy and are likely to contain more fundamental rights, rules and provisions, will therefore be amendable in a way akin to primary legislation. EU tertiary legislation and decisions, on the other hand, which contain more technical and detailed provisions, will be amendable in a way akin to subordinate legislation.

I believe that in many ways those amendments can be seen to go a step beyond the noble Baroness’s amendment, in that they seek to protect all the rights and protections contained in EU regulations and those that are retained by virtue of Clause 4, not just rights within a particular policy area. I also believe the Government’s amendments represent a more effective approach. Referring to broad but undefined policy areas could produce unclear or differing views about which provisions of retained EU law would actually be covered. This would not only lead to uncertainty within our domestic statute book but risk creating significant litigation as individuals and businesses sought clarity about how retained EU law should be treated.

I look forward to discussing in detail the Government’s amendments on this subject during later days. I believe they strike the right balance between protecting retained EU law from erosion and allowing us sufficient flexibility to ensure that we can deliver an operative and stable domestic statute book. Having said that, beyond the Government’s amendment I cannot give false hope that I will reflect further on this issue between now and Third Reading, so if the noble Baroness wishes to test the opinion of the House, as I suspect she does, she should do so now.

European Union (Withdrawal) Bill

Lord Low of Dalston Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I too rise to speak in support of Amendment 70A, which has just been moved by the noble and learned Lord, Lord Wallace of Tankerness, and spoken to by the noble Baroness, Lady Lister.

I apologise that I did not speak at Second Reading. My apology is in the same terms as that of the noble Lord, Lord Paddick, on the second day in Committee, who explained that he had taken the view that he was unlikely to be able to add anything new, bearing in mind the large number of speakers.

As we have heard from the last two speakers, the Government have strongly proclaimed their intention of maintaining existing equality protections once we leave the European Union. The proposed new clause contained in Amendment 70A provides the means of ensuring that this intention is fulfilled. It is thus in very much the same case as Amendment 66, which, as the noble Lord, Lord Deben, pointed out, does nothing more than what the Government want to ensure. It addresses concerns raised by the Women and Equalities Committee in another place, as we have heard—concerns that our exit from the European Union risks losing the entrenchment of our rights, provided by their under- pinning in EU law. To achieve this, the UK needs to replace the EU’s equality safety net with our own right to equality.

We in Britain are rightly proud that we have the strongest equality law in the world, which, in many areas, goes beyond what EU law requires. Yet some important protections—for example, for disabled people, who are naturally very close to my heart—as a result of the impact of EU law go beyond what we have been ready to do domestically. For example, the Coleman case in the European Court of Justice established that it is unlawful to discriminate against individuals because they care for a disabled person. When the underpinning of the EU law is taken away, there is a real risk that a future Government could seek to chip away at such protections. We have already seen this in the Red Tape Challenge under the coalition Government, when the existence of the EU safety net protected much of the Equality Act 2010, but we still saw provisions outside the EU directives being undermined. Many important protections in the Equality Acts could not have been changed at that time because they were part of EU law, as well as our own law. After Brexit, this will no longer be the case. Areas that some commentators have suggested may be at risk post Brexit even include aspects of equal pay legislation. This clause will set the equality standard against which new laws will be measured and make our courts the arbiter of equality compliance.

We have already heard what the Women and Equalities Committee stressed: ensuring that equality protections are maintained is not simply a matter of transposing existing EU law. To protect rights, the Government need to take active steps to embed equality into domestic law and policy. The proposed new clause specifically protects against disability discrimination and requires that a Minister must make a statement of compatibility when introducing new legislation. Specifically, this must include an undertaking that it does not discriminate on grounds of disability. This establishes an important mechanism for holding the Government to account in relation to new measures with a potential impact on disabled people. The clause also provides a mechanism for disabled people to challenge laws and actions taken by the state that have a discriminatory impact.

Sadly, it is all too true that the rights of disabled people need further protection in this way. For example, the High Court found, as recently as December of last year, that regulations determining entitlement to personal independence payment unlawfully discriminated against disabled people. The court held that the regulations were “blatantly discriminatory” against those with mental health impairments and that they were manifestly without reasonable foundation. In that case, the claimant was able to rely on her rights under the European Convention on Human Rights because she was able to show that the personal independence payment scheme falls within article 1 of the first protocol to the convention, which protects property rights. Therefore, the right not to suffer discrimination in the enjoyment of a convention right under article 14 of the convention was engaged. However, obtaining a remedy for such discrimination should not depend on whether the discrimination can be tied to a convention right. That is why a free-standing right to equality in UK law is needed, which is what the proposed new clause is intended to achieve.

[Lord Cashman (Lab)]

My Lords, I rise briefly to speak in favour of these amendments. I preface my remarks by saying that I agree absolutely with my noble friend Lady Lister of Burtersett. Human rights, fundamental freedoms and civil liberties define a country and its approach to civilisation. I remember 30 years ago looking on in horror as discrimination was visited on lesbians, gay men and bisexuals in this country by the then Conservative Government in Section 28 of the Local Government Act. That should remind us that there is never a continuous progressive line on equalities and human rights, and that we need to reinforce the protections that we have.

It is essential to guard against the excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights and freedoms are subject to full parliamentary scrutiny. I believe that is a matter of constitutional principle, as I have said on many occasions in your Lordships’ House and it bears repetition.

New scrutiny procedures introduced in the other place do not address this concern. They provide a mechanism, in the form of a sifting committee, to recommend—I emphasise “to recommend”—that the affirmative scrutiny procedure be used. I look forward to the Minister’s confirmation that such a recommendation does not have to be accepted by the Minister. Furthermore, stronger safeguards are required in the Bill to exclude changes to equality and human rights from the scope of these delegated powers.

I turn to Amendment 70A, having dealt with the principles of Amendments 161, 259 and the others in this group. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he introduced it, and the noble Lord, Lord Low, and my noble friend Lady Lister. Amendment 70A would introduce a new clause to ensure that the rights to equality presently enjoyed in accordance with EU law are enshrined in domestic law after the UK leaves the EU. Therefore, there is arguably no reason why the amendment should not be accepted. Indeed, for the Government to deliver on their commitment to non-regression on these rights, the UK needs to replace the EU’s equality safety net, referred to by the noble and learned Lord, with our own domestic right to equality. Amendment 70A would achieve this by setting a standard that all individuals are equal before the law and have a right not to be discriminated against by a public authority. For these reasons and many others, particularly the lessons of history, I support the amendment and others in the group.

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[Lord Low of Dalston]

My Lords, if the noble and learned Lord, Lord Wallace, does not want to respond to the question from the noble and learned Lord, Lord Mackay, perhaps I might have a go. If I heard him and remember correctly, the noble and learned Lord asked what the relationship to this amendment would be if the Government were to introduce their own right to equality. If that is the question, the answer is quite straightforward. If the Government were to bring in their own freestanding right to equality, they would essentially have accepted the amendment and there would be no need for it because they would have introduced it into primary legislation of their own motion.

[Lord Mackay of Clashfern]

My Lords, I am sorry but that is not exactly the question, which was on the effect of the retained EU law brought into this country, assuming it is given the status of primary legislation. That is a different question from the one the noble Lord, Lord Low, has kindly answered. But it is quite an important question, because there is a danger at least of a degree of conflict between the two. It is just a question that I do not know the answer to.

Brexit: EU Customs Union

Lord Low of Dalston Excerpts

Wednesday 7th February 2018 Lords Chamber

[Lord Callanan]

I can certainly agree with the noble Lord that the Liberal Democrats are confused, if that is what he is asking me to do. The term “customs union”, as he will know, has a specific legal formulation.

[Lord Low of Dalston (CB)]

My Lords, how is regulatory alignment between the Irish Republic and Northern Ireland to be maintained if we leave the customs union?

European Union (Notification of Withdrawal) Bill

Lord Low of Dalston Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I am sure that we all welcome the fact that the Prime Minister was present for part of our proceedings yesterday. Although it is reported that she looked as if she had come to intimidate more than to learn, I hope that she found her appreciation of the issues enriched, for the debate has been every bit as rich as House of Lords debates can be. She might have learned from the noble Lord, Lord Hain, for example, that member states have more scope to influence levels of immigration from other member states than is commonly supposed, or, at any rate, than is commonly made clear.

Like many other noble Lords, I deplore all the sabre-rattling about abolishing the House of Lords if it does not toe the line. At least, I would if the threats were not so empty. For a Government encumbered by the task of extricating the United Kingdom from the European Union, a commitment to abolish the House of Lords is all you need. If you are going to go in for sabre-rattling, you need to have some sabres to rattle.

I was in South Africa all last week. As I travelled back from Heathrow, I thought someone must have been putting something in the water as I picked up on the rather febrile suggestions that by exercising its traditional function of scrutinising legislation and asking the Commons to think again, the House of Lords would be acting unconstitutionally. It might be wrong on a particular issue but the idea that it would be behaving unconstitutionally is preposterous, especially when the Commons has been so pusillanimous in exercising the authority which the Supreme Court has confirmed it has.

By this point, there must be a premium on brevity so I will cut to the chase. We do not normally vote at Second or even Third Reading in this House but if we do, I will vote against the Bill. In the nearest I get to blogging—my Christmas round robin—I said that I was in favour of a second referendum on the terms of withdrawal once negotiated and would take every opportunity to vote against moves to remove us from the European Union, partly because the vote to leave was won on a fraudulent prospectus and partly out of sheer bloody-mindedness. As the noble Lord, Lord Foulkes of Cumnock, put it—for once, in more parliamentary language than mine:

“I will oppose it by any legal and constitutional means”.—[Official Report, 20/2/17; col. 110.]


The equation between the referendum and democracy is specious. I looked that word up in the dictionary. It means superficially plausible but actually wrong. As I said in the debate on 6 July last year,

“a snapshot of public opinion on a particular day is a very bad way to determine a question as complex as to whether we should remain a member of the European Union”.—[Official Report, 6/7/16; col. 2075.]

Moreover, the democratic credentials of the referendum are contested. If the vote had gone the other way, you can bet your life that the leavers would be mounting just the same criticism as the remainers.

Yesterday the noble Lord, Lord Forsyth of Drumlean, whom I normally find a genial and engaging debater, reminded us in an uncharacteristically intemperate speech of a government leaflet which said to the British people:

“The referendum on Thursday, 23rd June is your chance to decide if we should remain in or leave the European Union … This is your decision. The Government will implement what you decide”.


In a final taunt, he said:

“What part of that do those on the Liberal Benches not understand?”.—[Official Report, 20/2/17; col. 60.]


The Liberal Democrats can speak for themselves but I understand it all right. However, I will make five points which suggest that we should take it with a substantial helping of salt.

First, notwithstanding the Government’s language, there has never been any doubt that the referendum was advisory—and, I submit, the more flawed, the more advisory. Secondly, I do not make my stand on the flawed nature of the referendum. We are where we are. However flawed, there can be no question of setting the referendum aside. Whatever else it did, it certainly gave the Government a licence to open negotiations with the EU about withdrawal. But there is no way that it mandated a hard Brexit and there is no way that I am going to vote for triggering a negotiation designed to achieve a hard Brexit, which is likely to be so damaging for our country in terms of the economic growth essential for prosperity, living standards and the progress of civilisation and opportunities, and so inimical to an outward-looking and internationalist approach.

Thirdly, as others have said, a hard Brexit shows a cavalier disregard of the 48% who voted to remain and an unstatesmanlike indifference to the need to work for unity and reconciliation in our country. Fourthly, I cannot emphasise too strongly that support for a second referendum on the terms is not the same as seeking to refight the referendum campaign, which is what supporters of a second referendum are accused of. As Tim Farron MP said in the other place,

“voting for departure is not the same as voting for the destination”.—[Official Report, Commons, 7/2/2017; col. 290.]

Accordingly, I shall support an amendment designed to provide for a second referendum. I thought that the noble Lord, Lord MacGregor of Pulham Market, put it very well in a typically thoughtful and unpolemical speech when he said that he did not believe that the referendum vote should be decided as final, that the real issue is the reaction to the outcome of the negotiations, and that that is where the final judgment and vote should take place.

Finally, I shall support amendments which seek to maximise our access to, or retain our membership of, the single market. The Conservative manifesto for the 2015 general election indicated support for the single market. Especially if, in a bespoke deal, you wish to retain as many of the advantages of remaining in the single market as possible, it makes no sense to signal up front your desire to withdraw from it. If that is the way we are going to conduct the negotiations, we are going to get a very bad deal indeed.