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

Lord Thomas of Gresford Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, like the noble and learned Lord, Lord Goldsmith, when I put my name down for this debate I was expecting the Attorney-General to have come back with something that we could discuss on a legal plane. We have to admire the tenacity of the Attorney-General in refusing to temper his original note of 3 December, despite the overwhelming political pressure on him to do so. He has said, in terms, that his professional reputation as a lawyer is far more important to him than his reputation as a politician. He advised in December that the Northern Ireland backstop is intended by all parties to be temporary, and the assumption is that it will be superseded by a relationship agreement between Brussels and London. In the absence of such an agreement, the backstop is intended to endure. He said that the solution in such a scenario would be political and not legal.

This has not been sufficient for the Brexiteers. Their view, as expressed by the noble Lord, Lord Pearson of Rannoch, in his inimitable way, is that the European Union is a continuing conspiracy to hold the United Kingdom fast within its grasp. Their demands are for a time limit to the backstop or a unilateral exit route. The alternative arrangements they also propose would involve the development of a technology that does not exist, or at least does not operate satisfactorily, anywhere in the world. They demonstrate a complete lack of trust in the European Union. Similarly, the DUP. That party, which does not represent the majority view in Northern Ireland, seems totally incapable of perceiving the potential economic benefit to that Province if it were able to trade directly and freely in a customs union and single market with the EU and at the same time have direct and free access to the UK. Instead of promoting the positives, they mouth with suspicion the negatives.

So Mr Cox was sent off to negotiate legally binding clauses to add to the Northern Ireland protocol. This shows a gratifying, if unexpected, trust in the legal profession and the judiciary. Lawyers, under this plan, would determine when the backstop has served its purpose—a massive decision with implications for the people of this country. Yet, in the absence of political agreement, it is seriously proposed that lawyers should be instrumental in prising open the economic, social and legal ties which have bound us together with the EU for more than 40 years. The withdrawal agreement provides for an arbitration process, but that model was apparently not sufficient. If a decision cannot be agreed in the joint political committee, the issue, under the withdrawal agreement, goes to a panel of five arbitrators, but any issue as to the interpretation of EU law must be referred to the European Court of Justice. Of course, for reasons I have never been able fully to fathom, the European court is anathema to the Brexiteers as a matter of faith, although the United Kingdom has the best record of success in that court of any EU country.

No matter—Mr Cox has done his ingenious best. It seems he has proposed a separate arbitration panel, with no access to the European court, to decide when the backstop has served its purpose. The membership we do not know, but let us assume it is similar to the panel agreed in the withdrawal Agreement. He has rightly conceded that it cannot be the purpose of lawyers, however eminent, to determine whether the sovereign United Kingdom or the EU and its sovereign states are acting in bad faith. Unless you are a truly head-banging conspiracy theorist, you cannot expect a panel of arbitrators to determine that a sovereign state, in legitimately pursuing its own interests as it sees them, is acting in bad faith.

Mr Cox sought therefore to introduce the Brussels negotiators to the concept of “the reasonable man”—the man on the Clapham omnibus. That is a legal tag which has done the rounds in the field of the law of negligence in every common law country—it recently surfaced in Hong Kong as the “man on the Shau Kei Wan tram”. The issue he proposed for the arbitrators to decide was whether the UK would be acting “reasonably” if it sought to terminate the backstop.

The arbitrators would not be concerned with construing a difficult line of legal text but with deciding a question of opinion: is the UK, or the EU, acting “reasonably” in accordance with the standards of the man on the Clapham omnibus? I do not knock the Clapham omnibus; the No. 87 bus which runs from Westminster to Clapham has many distinguished regular passengers, not just myself and my noble friend Lady Walmsley, but the noble Lords, Lord Faulkner of Worcester and Lord Cope, the noble Baronesses, Lady Gale and Lady Morris, and, above all, the noble Lord, Lord Taylor of Holbeach—although he generally does not go much beyond the Tate Gallery. It would be very hard for arbitrators and lawyers in Brussels or elsewhere to guess what we on the 87 bus collectively thought was reasonable. Hence, I regret to say that terms such as “crazy” and “bizarre” have been reported from the EU side on its introduction to this entertaining concept invented by a Victorian judge.

The plane was standing by at Northolt, and may have taken off, but what possible gain can there be for the Prime Minister to plead with Mr Barnier to repeat for the umpteenth time that the backstop is intended by the EU as well as the UK to be temporary? Why do not the ERG, the DUP and sundry other leavers take him at his word? Can diplomacy exist at all in the world without a measure of trust? Can there be compromise, as the noble Lord, Lord Howard, talked about, without trust? Mr Cox said in December that the solution as to when the backstop would end would be political and, of course, he was absolutely right. Let us leave it at that.

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

Lord Thomas of Gresford Excerpts

Wednesday 27th February 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

The Minister will be aware, because he carried the Bill through, that the withdrawal Act has a provision that allows the Government to amend the date and time of leaving simply by regulations—it can be done overnight.

[Lord Callanan]

I have to say that many noble Lords have argued strongly against statutory instruments being approved “overnight”, as the noble Lord suggests, in other cases. He is, however, quite correct that there is such a provision. Nevertheless, the original provision is in the legislation. I give way to the noble Lord.

Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Lord Thomas of Gresford Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, it is always a great pleasure to follow the noble Baroness, Lady Kennedy, and I congratulate her and the staff of her distinguished sub-committee for their immense labours in producing a report on this highly complex and intractable issue. I was interested to hear that it is regarded as being the second largest stumbling block to the withdrawal agreement which is in the process of being negotiated.

We are looking at a number of agreements, the first of which is the withdrawal agreement, which will cover a number of components: the question of finance—how much to pay—citizens’ rights and the protocol on Ireland and Northern Ireland. We expect future agreements to cover the relationship between the UK and the EU in a number of areas, principally trade and security, and there will be other agreements to cover ongoing participation in the EU programmes to which the noble Baroness referred. The governance of each of these agreements contains three elements or components. The first is management of the agreement, the second is dispute settlement, and the third is enforcement after dispute settlement.

The withdrawal agreement has been published in draft form with the areas of agreement coloured in green. From this it appears that agreement has been reached under draft Article 157 for the establishment of a joint committee responsible for the supervision and implementation of the agreement. That covers the first management component of the agreement. The joint committee is to be a political committee, but one of its functions under draft paragraph 4(c) is to,

“seek appropriate ways and methods of preventing problems that might arise in areas covered by this Agreement or of resolving disputes that may arise regarding the interpretation and application of this Agreement”.

That is intended to be the first stage, the political stage, in the settlement of disputes, but what about the second or appeal stage of dispute resolution? There is still substantial disagreement between the United Kingdom and the European Union over how to deal with this and how a dispute settlement should be enforced. On the one hand, the EU has proposed that the European Court of Justice should be the final arbiter because it says that the draft withdrawal agreement still embodies many provisions of EU law and the CJEU has declared itself to be the only binding interpretative authority of EU law. On the other hand, the United Kingdom has argued that it is unacceptable that the appeal body, the final resolution body, in a dispute over the withdrawal agreement or indeed any agreement it concludes with the EU, should be a court whose judges are drawn only from the continuing EU member states. That is the nub of the matter.

Of course, the issue is bedevilled by the irrational demonisation of the European Court of Justice, first by those who campaigned to leave the EU and later by the Prime Minister, who has lost no opportunity to declare that leaving the jurisdiction of the CJEU is one of her red lines. I have never understood how that court could have been painted in such scarlet colours. In the first place, its function has never been to lay down draconian law which binds us all in servitude, but to interpret law which, even if it starts with the Council of Ministers or the Commission, has been subjected to a democratic process in the European Parliament. The United Kingdom has, since joining the EU, had full representation in these three bodies.

Secondly, we have always provided a distinguished judge to sit on the court. Sir Konrad Schiemann, the former United Kingdom-nominated judge of the court between 2004 and 2012, said in evidence to the Committee that,

“in the Luxembourg court the tradition is that you lose your nationality the moment you join the court, which makes no distinction between judges of one nationality and another. … The tradition was that you were not there to plug the point of view of your national Government. That was not your job. Your job was to try to decide the law in the light of the general European interest”.

That, indeed, is the way in which the Court of Justice has operated: it is not a court of competing national judges.

Thirdly, the United Kingdom has, through the power of its legal advisers and advocates, been very successful in the European Court of Justice. The European Commission does not bring cases that it does not expect to win. Of the 63 cases the Commission brought against the United Kingdom that resulted in rulings between 2012 and 2016, the UK submitted a defence in only 30 of those 68 and conceded the rest. In the cases the United Kingdom defended, its success rate was 53%. Its overall success rate of all cases in the period 2003-16 was 25%, the highest of any of the 28 member states. Penalties have never been imposed on the United Kingdom by the Court of Justice for failing to abide by its judgments. In other words, our Governments have always accepted its judgments, even in the cases that we have lost.

The Government’s response to the Committee’s report of 5 July says that they will “respect the role” of the European Court of Justice in the interpretation of EU law in disputes between member states. They expect the EU in return to “respect the role” of our Supreme Court. That is a gnomic utterance: what does it mean? I hope the Minister will enlighten us. It certainly does not help to resolve the current dispute on the appropriate legal body or arbitration process to resolve disputes.

The Committee explored the idea of locking on to the EFTA Court as an independent judicial body, but is rightly not enthusiastic about it because it would require the agreement of Norway, Liechtenstein and Iceland radically to revise the purpose and structure of that court to accommodate a far greater caseload than it was designed to carry and to extend its jurisdiction in economic matters into areas of justice, security and family law. It is clearly not appropriate.

Is there not room for more creative thinking? The institution of the European Court of Justice exists. Its physical building and its administration exist. The United Kingdom has played its full part in its procedures, has been part of its development and has been successful both in the judicial sphere and in advocacy before it. Would it not be sensible to create a special chamber of the European Court of Justice for dealing with disputes arising out of the special circumstances of our leaving the EU? We are not leaving Europe. The judges of that special chamber could comprise an equal number of members of the continuing court and members or former members of our Supreme Court, together with an eminent president from a neutral jurisdiction. This is the important point: since it would be a part of the Court of Justice, it could meet the European Union’s requirement that only that court can interpret provisions of EU law where that this necessary. At the same time, there would be participation from the United Kingdom.

That special chamber would be of particular advantage if disputes arose in respect of the future agreements: the elusive trade deal, agreements concerning our participation in existing EU programmes, the security stuff, the European arrest warrant, Interpol, data protection, family matters and in those areas where the Government wish to continue to participate and co-operate in other fields. It could also be a forum for pursuing individual rights, those of European Union citizens in the United Kingdom and United Kingdom citizens in the European state. We would not want European citizens in the United Kingdom to have remedies solely in the courts of this country if that meant that our citizens abroad in Europe would have remedies only from a European court.

I cannot help comparing the present impasse to the successful negotiations over Hong Kong, where the innovative principle of “one nation, two systems” was developed, and the Court of Final Appeal, which replaced the Privy Council, introduced non-permanent judges to supplement its Bench—I see one of them here today. Judges from the United Kingdom, Canada, Australia and New Zealand play a part in assisting the Bench in the Hong Kong court.

Incidentally, I believe that the answer to the Northern Ireland impasse would be to declare Northern Ireland a special administrative region. With direct access to both the EU and the UK, it would be highly attractive as a centre for financial and other services—legal, accountancy and banking. I am sure that Wales would jump at the chance of becoming a second Hong Kong.

Would the Government’s aversion to the European Court of Justice, fuelled by the empty and ill-informed rhetoric of the Brexiters, stand in the way of such a solution? Surely it would be more acceptable to the public of this country to know that if enforcement proceedings in the nature of fines or the withdrawal or suspension of concessions were imposed on us, it would be as a result of an order of an established and transparent court, whose proceedings were open and readily accessible, rather than some obscure, supranational arbitration body such as that outlined in the Government’s response to this excellent report.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

Moved by

[Lord Thomas of Gresford]

8: Clause 15, page 13, line 7, at end insert—
“( ) A Minister of the Crown will not normally lay a draft as mentioned in subsection (3) without a consent decision having been made under subsection (5)(a).”

[Lord Thomas of Gresford (LD)]

My Lords, on 2 May on Report, at col. 2148, I pointed out that by reason of subsection (4) of the new Section 109A, which the Bill inserts into the Government of Wales Act 2006, the Minister of the Crown must not lay a draft of regulations to restrict the powers of the Welsh Assembly to modify retained EU law unless the Assembly has first made a “consent decision”. Calling it a consent decision is confusing, because the decision of the Assembly may, under proposed new subsection (5)(b), be not to consent or, under (5)(c), to refuse to consent. Therefore, in the proposed new clause as it is currently drafted, the making of the so-called consent decision is just a box to be ticked: a prerequisite step only, which, whatever way it goes, permits the Minister to go ahead to lay the regulation before the UK Parliament for its approval.

Under further amendments to paragraph 43 of Schedule 3, if the Assembly does not consent, the Minister must make an explanatory statement to the UK Parliament when laying the regulations before both Houses to explain his decision to go ahead without consent. At the same time, he must lay before each House any statement of explanation of Welsh Ministers as to why the Assembly has refused to consent. Of course, at the hearing of a statutory instrument, there will not be counsel on both sides putting forward these points of view, but at least both sides will be put to Parliament.

This is the precise point of objection of the Scottish Government. In the event of conflict, this mechanism gives the United Kingdom Parliament the final say, which is why the Scottish Government refused last night to give legislative consent to the Bill. I asked the Minister on Report, if the Scottish Parliament did what they have now done and refused consent,

“should Clause 11 be removed from the Bill altogether, as I have argued at Second Reading and since, and its provisions brought back in new primary legislation after further discussion and … agreement?”.—[Official Report, 2/5/18; col. 2149.]

The Minister did not answer me then, no doubt because it was a hypothetical question on 2 May. But it is no longer hypothetical, so what is his answer now? What are the Government going to do?

More pertinent to this amendment, I raised the issue of the Sewel convention. Paragraph 6 of the intergovernmental agreement made with the Welsh Government said:

“The implementation of this agreement will result in the UK Parliament not normally being asked to approve clause 11 regulations without the consent of the devolved legislatures”.


A similar reference appears in paragraph 8 of the accompanying memorandum of understanding. Therefore, there can be no objection to my amendment in principle if it were to appear in the Bill.

That is not the only way in which people in Wales can get comfort. The other possible course I suggested was that the Government affirm that they regard themselves bound in making any regulations by the express commitment to the Sewel principle which we inserted last year, and which came into force only on 1 April last, as Section 107(6) of the Government of Wales Act 2006:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”.


I said in terms to the Minister:

“I would like an express commitment from the Dispatch Box on this point, either to amend the proposed new Section 109A at Third Reading to put the Sewel convention in this clause, or to confirm that Section 107(6)—last year’s insertion into the 2006 Act—will apply”.—[Official Report, 2/5/18; col. 2148.]


There was no answer to this point from the Dispatch Box. I appreciate that the Minister was busy, and he made an offer to correspond with any noble Lord on any point he had not dealt with and to put a copy of his reply in the Library. However, that is an unsatisfactory way of dealing with matters. The Minister in his response to the last amendment referred to the case of Pepper v Hart in 1992. It was with the greatest difficulty that the judicial committee in that case agreed by majority that what was said on the Floor of the House in Parliament was available to construe confusions and anomalies in legislation. Indeed, the noble and learned Lord, Lord Mackay of Clashfern, dissented and thought it wrong to have to look at Hansard to construe a statute. So it is not something that can be extended. I do not think that, particularly on such a sensitive issue, the Supreme Court would be impressed by correspondence between a Member of Parliament and the Minister, even if it was in the House of Lords Library.

The Supreme Court is about to hear exactly what is meant by the words “not normally” if the Government decide to push the Bill through—particularly the devolution clause—without the consent of the Scottish Parliament. It has been described overnight as a constitutional crisis, but what a setting to try to agree UK framework agreements across 24 areas of policy if the mechanism cannot be agreed with the Scottish Government first. The Welsh Government have come to terms with that, recognising that we live in a united kingdom and that Wales has representatives in both Houses. It is very important that there should be no room for misunderstanding. It is only in the most exceptional cases that any UK Government should push through measures that fall within the competence of the Welsh Assembly, particularly through the use of statutory instruments. That is why this amendment is before the House, and I beg to move.

--- Later in debate ---

I would like to put on the record as well that this Government are committed to acting in the spirit of the intergovernmental agreement which has now been published, and I should say too that we are committed to acting with all the devolved Administrations so far as that agreement is concerned, not only those which have given their consent. We will continue to respect the devolution settlements and we will seek the consent of the devolved Administrations, as we set out in the intergovernmental agreement, with regard to matters as we go forward, including the matter of the amendments adopted by noble Lords during the Report stage of this Bill. With that, I invite the noble Lord to consider withdrawing his amendment.

[Lord Thomas of Gresford]

My Lords, I am most grateful to the Minister for his very full reply, and in particular I note his formal commitment from the Dispatch Box to the application of the Sewel convention to this legislation. Moreover, the principles that are referred to in the amendment tabled by my noble and learned friend are indeed the principles set out by the Joint Ministerial Committee in October last year. As the noble Baroness, Lady Hayter, said, the process of consultation with the devolved Administrations started far too late and there were no meetings of that Joint Ministerial Committee for some seven or eight months; that is, during the very important period when the negotiations with Europe were beginning. It is almost ironic that it is the principles that were set out by agreement between all the parties at the first meeting of that Joint Ministerial Committee which now find themselves as the foundation of the way forward in this Bill.

The noble Lord, Lord Kerr of Kinlochard, said that there should be less discourtesy and more diplomacy, and I agree with him entirely on that. The noble Lord, Lord Wigley, gave us some insight into the proceedings yesterday in both Edinburgh and Cardiff. He described the incredulity that was expressed at the drafting of the very point which I have taken in my amendment—incredulity that a consent decision could mean no consent or the refusal to consent. It is a mark of the state of the relationships that exist between the devolved Administrations that there has been no proper discussion on these issues until now.

I agree entirely with the noble and learned Lord, Lord Mackay, that what we are looking for is a mechanism whereby there is agreement about how these UK framework agreements are to be entered into. It is not so much the agreements themselves as the mechanism by which those agreements are made that is important. The point I was seeking to make was that if the Government choose to push on with this Bill without the consent of the Scottish Government, the chances of coming to a UK framework agreement are that much more diminished. It would be much preferable for the Government to continue their efforts to come to an agreed mechanism whereby those arrangements can be completed.

Having regard to the commitments that have been made from the Dispatch Box, I do not need to press the amendment. I will finish on this note—namely that, as with the noble Lord, Lord Kerr, I think it is a great shame that the SNP are not represented in this Chamber. They merely wish to take control; they merely wish to make their own laws; they are prepared to risk economic security for sovereignty, whatever that may mean; and there are quite a number of people in this House who take a similar view, but not for Scotland. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

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

[Lord Keen of Elie]

There we go.

The next stage is to say that we as a Parliament do not trust our ability to hold the Executive to account. Then we go on to the next stage to say, of course, that we do not trust the electorate to return a Parliament that is capable of protecting their fundamental rights. What happened to the mother of Parliaments? What happened to the concept of the sovereignty of this Parliament? We are apparently prepared to abandon it in favour of a body of foreign law because we no longer trust ourselves to protect our own fundamental human rights. Is that what we have really come to? It is a shocking dénouement: whether you wish to leave the European Union or you do not wish to leave the European Union, the idea that we are going to have to cling on to a body of foreign law in order to maintain fundamental human rights in this country is simply astonishing. As I indicated before, it would reflect not only a constitutional outrage but a total abdication of our responsibilities.

Looking to Amendment 15, what is it actually going to do? It is going to bring into our domestic law a charter that relies upon union law—a developing body of foreign law going forward. Are we going to monitor this, because we are not ring-fencing the terms of the charter if we bring it into retained EU law? It will be subject, going forward, to the Explanatory Notes; it will be subject, going forward, to the development of Union law; and on the back of that, where we are supposed to be directly implementing EU law—and I can only infer that the intention of the amendment, although it is not stated and cannot be found there, is that this applies to retained EU law rather than EU law itself—the intention is that we should therefore be bound to watch while primary legislation of this Parliament is struck down on the application of a foreign body of law. We need to wake up to why the charter in its present form does not sit with our future constitutional settlement after we leave the EU and why it does not fit with the body of retained EU law that is referred to in the Bill.

[Lord Thomas of Gresford (LD)]

If the charter is incorporated, does it not become retained EU law? Therefore, it would be subject to the mechanisms that are set out in Clause 7 of the Bill, which would enable Parliament, or Ministers—however we decide—to change it afterwards, with proper debate. What is going to happen to the rights contained in the charter which are above the rights that we have at the moment, as he has conceded and as has been conceded by other people? What is going to happen to those rights? They will fall away; they will not become part of retained EU law and therefore will not be part of the law of this country.

[Lord Keen of Elie]

With great respect to the noble Lord, just because the charter is made part of retained EU law in terms of the Bill does not mean that Union law, which is the linchpin and anchor of the entirety of the charter, is then retained EU law. Union law remains Union law. Therefore the charter will continue to develop. Even though it is ring-fenced within retained law, the body of the charter will be subject to Union law. You cannot have it both ways.

The noble Lord also mentioned the loss of rights. As we indicated, we have done an analysis of rights, which has been published. We have indicated that if, once this Bill is passed, it is apparent that any substantive rights are lost, we will address that. With great respect, it appears to me that the noble Lord misses the fundamental point, which is that we are effectively going to be submitting to a body of foreign law after we exit the EU if we proceed in this way. I am afraid that is the case. We cannot say we are going to be directly implementing European Union law when we are no longer a member. We will not be. It amounts to that.

I accept that various views have been expressed by various parties about the scope of the rights that will be retained after we leave the EU without the charter, and there is a lively debate about that, but let us remind ourselves again that the charter has application only when we are directly applying EU law. My noble and learned friend Lord Mackay of Clashfern made the point. What happens to the right to dignity in circumstances where we are not directly applying EU law? Of course it still exists. We recognise that. We would have no difficulty in recognising that, and we do not require Article 1 of the charter for that purpose. In these circumstances, noble Lords have indicated, quite rightly, that to incorporate, or even to attempt to incorporate, the charter, particularly in the form of this amendment, is to do serious damage to our entire constitutional settlement, particularly post Brexit. I hear someone say, “Outrage”, and I agree with them.

I now come to Amendment 18, which was tabled by the noble Lord, Lord Beith. He suggested that his amendment would be a necessary consequence if Amendment 15 is carried, but I do not accept that it is a necessary consequence in those circumstances. His amendment, which seeks to remove the power in paragraph 2(2)(b) of Schedule 1 and the related provisions in sub-paragraph (3), is not appropriate. Schedule 1 generally ends the ability to bring challenges on EU law validity grounds to what will become retained EU law after we leave. After exit, individuals would continue to be able to challenge EU decisions before the CJEU and to have them annulled, in so far as they apply in the EU. The converted form of the decision would, however, remain in force within the United Kingdom. Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not think it would be right to hand them a wide-ranging new jurisdiction which asks them effectively to assume the role of the CJEU. The noble Lord’s amendment does not alter that general exclusion.

Where we differ is that the Government recognise that, in some circumstances, individuals and businesses may be individually affected by an EU instrument which has been converted and should have a right to challenge it. For example, it would be strange if after exit a UK business were able to challenge and have struck down an EU decision which prevents it carrying out certain trading activities within the EU but would not have any equivalent right of redress in relation to the form of that decision which has been retained as part of UK law. It is for that reason that provision is made for this power. I note the noble Lord’s observation that it may be exceptional and may never be used. I accept that, but it is felt that it should be there as a safety measure. I urge the noble Lord not to insist on that amendment.

With regard to the position of the noble Lord, Lord Pannick, I ask him to think again about Amendment 15. I ask him to think very carefully about the form of it and what he is actually attempting to bring into domestic law, because it simply does not fit. It is in those circumstances that I invite him to withdraw his amendment.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I added my name to this amendment and I am grateful to my noble and learned friend Lord Hope for the way that he introduced it and for the remarks which have subsequently been made. It is very important that we follow up on what the noble Lord, Lord Tyler, said: we must find a way forward by the time we get to Report.

In previous debates, we have discussed common frameworks and there was the suggestion of creating a new schedule to the Bill—indeed, I said that I would try to draft one—to clarify the intersection between EU law and the devolved legislative competences. There are, though, areas that remain for dispute. Like the noble Baroness, Lady McIntosh, I suggest that there is not simply a dichotomy between consultation or consent, but that there is a phase of needing negotiation and trying to reach agreement between the Governments concerned. I refer the Government to a Welsh government document which I do not think has been referred to previously in our debates, Brexit and Devolution. It was produced some time ago but it has a section on what happens,

“if agreement cannot be reached at all through normal procedures”,

and lays out the need to recognise,

“a backstop arrangement as part of the overall operating procedure”,

and that it may need “independently managed arbitration”.

The noble and learned Lord, Lord Mackay, has proposed a very elegant potential solution to move forwards. Some reservations were expressed about that last phase, which was that if there could not be an agreement reached there would be another problem linked to that: that there needs to be an overall responsibility for a UK-wide market and governance responsibility for the way in which things are conducted. Ultimately that will have to rest with one person, who I venture to suggest will be the Prime Minister because that is the overall and overarching point of responsibility. That does not mean that we would go from one to the other without many stages of careful negotiation in between and on the way.

The contents of this amendment were referred to in annexe A of a letter that was sent to me, and I think to other Peers, by the noble Lord, Lord Bourne of Aberystwyth, on 21 March, signalling a wish to move forwards. Following the question about the continuity Bill, I would like to put it on record that I received a letter on 23 March, last Friday, from David Rees, the Assembly Member who chairs the External Affairs and Additional Legislation Committee. He says in that letter:

“We appreciate the UK Government’s willingness to propose a solution to the impasse we currently face on the treatment of devolved areas of competence once EU law restrictions are lifted from them”.


He goes on to point out,

“the failure to acknowledge a role for the Assembly in the control of powers for which it is responsible”.

That was a problem but, he says:

“We note that the amendments were debated before being withdrawn or not moved in the House of Lords on 21 March … and hope that further progress can be made in the coming weeks”.


I wanted to quote from that letter because there is an atmosphere of good will and a recognition that there needs to be a way forward. I hope that this amendment will contribute towards the Government’s move—it was debated at some length last week when we debated the frameworks—and that we can find a way forward, but it will need dispute resolution processes to be clearly laid out because, even though the EU competencies may fall centrally or to the devolved legislatures, there will still be difficulties at the intersection of many of those broad headlines. We have already had the very helpful table set out by the Government following the deep drives into the legislation but, with all due respect to everyone looking at this, I suggest that we should formally consider laying out some form of dispute resolution so that we do not revisit the impasse we had.

[Lord Thomas of Gresford (LD)]

My Lords, I strongly support the call by the noble and learned Lord, Lord Mackay, that primary legislation should be used to form the necessary frameworks. I made that point at Second Reading when I suggested that Clause 11 and all devolved matters should be taken out of the Bill altogether. It might then not have required any consent from the Scottish Parliament and the Welsh Assembly, the whole matter would have been considerably simplified and the focus could have been put on the very difficult issues that arise with devolution. The original architecture which the Government put forward, which of course they have changed now, was that the powers that were to come back from Brussels—or, as the noble and learned Lord, Lord Mackay, said, the restraints upon the devolved Administration, which is a simpler way of looking at it—should go to the UK Government and then be parcelled out and conferred upon the devolved Administrations. Which powers and when—the timing and the nature of those powers—would be virtually at the whim of the Minister who would decide what was appropriate. It would be done by secondary legislation, either statutory instruments or Orders in Council. We have had debates about that.

The conferred powers model has never been used in relation to the Scottish Parliament. It has always been reserved powers. That is to say that in specific cases of policy, all those powers go to the Scottish Parliament, save those that are named, enumerated and held back— reserved—by the UK Government. Precisely that reserve powers model is about to be employed in Wales under last year’s Wales Act. It is to commence in April. To come forward with a scheme in which, in effect, powers are conferred not by the UK Parliament but by a Minister merely by statutory instruments, which cannot be amended, or by Orders in Council, was clearly inadequate and has given rise to a great deal of difficulty and angst, certainly in Wales.

I shall quote from the evidence that appears in the report of the Committee on the Constitution. It was given by Professor Richard Rawlings of University College London, who has given very valuable advice, in Wales in particular, on devolution issues. What he said about the original architecture was that,

“this process does not establish positive duties on the part of the UK Government to devolve. Legally-speaking, suggested ‘transitional’ elements could so easily become permanent features”.

That is the which and the when. He continued:

“Nor need one be an expert in game theory to appreciate the way in which clause 11 stacks the cards in favour of the centre when negotiating the different design choices with common frameworks”.


If the devolution of powers is simply within the control of the Minister of the UK Government, then the Scottish Parliament and the Welsh Assembly have lost their bargaining power in the creation of frameworks. The point was made that while UK-wide frameworks will be necessary in a number of policies, they should be agreed on a parity-of-esteem basis between the Governments and legislatures of the United Kingdom, not imposed by the UK Government even on a time-limited basis.

I hope that indicates what the real, critical matter is. It is not just Welsh, Scottish and possibly Northern Irish people whingeing or seeking to stand up for their own individuality—it is nothing like that. It is that they should have equal bargaining power with the UK Government in the construction of the UK frameworks, which everyone agrees are necessary. I wholly support the amendment.

[Lord Liddle (Lab)]

I have listened with great attention to these debates on devolution and found them extremely interesting. However, I have to say that the longer I have listened, the more concerned I have become about the threat that Brexit poses to the unity of the UK. There is a lot of glib talk about processes, agreement and consent, but in fact we are dealing here with some highly political issues that were not greatly controversial as long as we were members of the EU, but could become of considerable controversy between the nations of the UK, given the different political balance in each of those nations.

I shall make three points to illustrate what I think the threat is. First, the European single market is not a complete single market; it is the deepest single market in the world but it is not complete. One of the differences is that tax rates vary between member states. There has never been a completely harmonised tax system; customs vary, as do business taxes. Once we start talking about a UK single market, the debate will be raised to a new level: about whether tax rates can differ in areas where they presently do not between the nations of the UK. That raises fundamental political choices—between those who believe in higher taxes and higher public spending, and those who do not—and you get people going in different directions.

Secondly, issues such as competition, state aid and public procurement will become highly political and divisive, and it is quite likely that the Welsh and Scottish Governments will wish to take a different approach to these issues from a Conservative-led UK Government. That would lead to a lot of tension. Thirdly, in the area of trade, the beef farmers in the north-east of Scotland and Welsh hill farmers who export their sheep, for example, will be greatly alarmed that the UK Government are prepared to sacrifice these interests in order to complete trade agreements with the rest of the world, and they would have no say whatsoever in those agreements. So on all those grounds I believe we are dealing here not just with processes but, potentially, with highly difficult political questions. Consent is absolutely fundamental. The idea that the solution to these problems could be imposed by a UK Government runs the risk of leading ultimately to the break-up of the UK.

My final point is that a lot of these problems—some 90% of them—would not exist if we stayed in the European single market. That is what many of us on these Benches want to do. The simplest way to prevent these divisive issues that threaten the unity of the United Kingdom is to stay in the single market, where we all stick with a set of common rules.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Monday 19th March 2018 Lords Chamber

[Lord Thomas of Gresford]

I wonder if I might remind the noble Lord, Lord Higgins, that the first referendum passed by this Parliament was in 1881 when Gladstone’s Government passed the Sunday Closing (Wales) Act. Wales was dry as a result of that until a Conservative Government decided in 1961 that the only way in which you could reverse that decision was to hold a series of referendums throughout Wales. Every five years or so there were repeat referendums in the various counties of Wales until ultimately, in 1996, it became wet again. So there is the precedent; I am a lawyer and I seek precedent. The Liberals introduced a referendum and the Conservatives decided in 1961 that you could deal with that by holding referenda.

[Baroness Altmann (Con)]

My Lords—

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I agree with what the noble Lord, Lord Cormack, has just said. As the noble and learned Lord, Lord Judge, the noble Viscount, Lord Hailsham, and my noble friend Lord McNally explained, the Bill as drafted would permit Ministers, when they consider it “appropriate”—a point made by the noble Viscount and a word discussed at length last Wednesday—to create by regulations new criminal offences carrying up to two years’ imprisonment for wide and diffuse purposes. As discussed last week, regulations could also be used to make any provision that could be made by Act of Parliament. The Henry VIII powers are as all-embracing as could be imagined. This is all the more shocking in the context of the creation of new criminal offences. These may concern individual liberty, certainly; reputation, always; and the conduct of business, as the noble Lord, Lord Carlile, has pointed out.

The report of the Delegated Powers and Regulatory Reform Committee—on which I sat for a number of years—described the powers as “wider than we have ever seen”. It described Clause 7 as notable for its width, novelty and uncertainty, and the same can be said of all three of the clauses in question. The principle is simple: it is in general not acceptable for the Government to have the power to create new criminal offences by regulation without an Act of Parliament. That principle was treated as cardinal when I was on the Delegated Powers Committee.

In 2014 the committee produced a document headed Guidance for Departments, directed principally at memorandums for the departments. However, on the question of criminal offences it was considered so out of order that new criminal offences would be created by regulation that the guidance did not even address that possibility. The committee said:

“Where a Bill creates a criminal offence with provision for the penalty to be set by delegated legislation”—


that is, the Bill creates the offence—

“the committee would expect, save in exceptional circumstances, a maximum penalty on conviction to be included on the face of the bill. Therefore, where this is not the case, the memorandum should explain why not, and at the very least the Committee would expect the instrument to be subject to affirmative procedure. Similarly, where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

However, this Bill potentially permits the creation of a new range of criminal offences. Both the Bill and the Explanatory Notes are silent about everything to do with such offences as might be created except for the broad statement of their purpose in the three clauses, in the most general terms, and with no indication of what offences are envisaged, except that the maximum penalty must not exceed two years imprisonment—which, as the noble Viscount, Lord Hailsham, pointed out, is a not insubstantial period.

The basic principle was enshrined in Article 39 of Magna Carta: that no one should be imprisoned or stripped of his rights or possessions or deprived of his standing in any way except by the lawful judgment of his equals or by the law of the land. These are constitutional principles as old as this Parliament, and we should be very careful in dealing with the issue of allowing the right of Parliament to insist on a say over criminal offences being created by the diktat of Ministers.

[Lord Thomas of Gresford (LD)]

My Lords, in this context, I draw attention to the paragraphs in the Delegated Powers and Regulatory Reform Committee report which deal with tertiary legislation because it is important that this aspect should be understood. The Bill confers powers on Ministers to make law by regulations, and the secondary legislation can do anything that Parliament can do. This would allow people, bodies or Ministers to make further subordinate legislation—tertiary legislation—without any parliamentary procedure or any requirement for it to be made by statutory instrument. Where tertiary legislation is not made by statutory instrument it evades the publication and laying requirements of the Statutory Instruments Act 1946 but it is still the law.

Nothing in the Bill limits the power of creating tertiary legislation. It can be used for any purpose—for example, to create new bodies with wide powers, which could introduce criminal offences in many of the areas currently governed by EU law, including aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They may only provide the skeleton provisions in relation to a particular activity, leaving the detailed regime to be set out in tertiary legislation made not by Parliament or Ministers but by one of the new bodies so created.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Hope of Craighead]

My Lords, I can see the force of that, but I do not know whether that option is available in the present climate. As regards reassuring the parties in Cardiff and Edinburgh, something in the Bill is looked for. Again, it is a matter of trying to find a way to soften the atmosphere, which is highly unfortunate at the moment. I deliberately have not discussed Clause 11, because that is quite a different debate. However, the more we can do to clear the air by getting these points out of the way before we get into Clause 11, the better, and that is the basis on which I have moved this amendment.

[Lord Thomas of Gresford (LD)]

My Lords, late at night on 21 July 1998, I was sitting where the noble and learned Lord, Lord Morris of Aberavon, is sitting at the moment, when Lord Sewel responded to an amendment moved by Lord Mackay of Drumadoon to this effect during the passage of the Scotland Act:

“This Act does not affect the power of the Parliament of the United Kingdom to make laws for Scotland, which may not be amended or repealed by the Scottish parliament”.


In resisting that amendment, Lord Sewel said:

“Clause 27 makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.


If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue. That is what differences between mature parliaments and executives will be concerned with. That is what happens in other political systems. I cannot believe that it is beyond our wit to develop such a convention”.—[Official Report, 21/9/98; cols. 790-91.]


So the use of the word “normally” was off the cuff, and I imagine that Lord Sewel would be as surprised as I am to find that it has become subject to such intense examination in subsequent years.

[Lord Forsyth of Drumlean]

The word “normally” was certainly not off the cuff. If the noble Lord looks back at the lengthy debates we had during the passage of the last Scotland Bill, he will find that there was considerable debate about the use of the word “normally” and the wisdom of including in statute what Lord Sewel said was a convention.

[Lord Thomas of Gresford]

I think that the noble Lord misses the point. I am saying that that was where the word “normally” first originated in 1998. No doubt it has received considerable debate since, and indeed I have listened to debates on that topic.

The problem is a lack of trust—as has been mentioned by a number of noble Lords today and as has been illustrated by the noble Lord, Lord Forsyth, in a number of interventions—between the United Kingdom Government and the Scottish Government, and no doubt a lack of trust between the Labour Government in Wales and the Government in Westminster. It seems to me that it derives from the suggestion that there should be an imposition by the Westminster Government on areas currently devolved to the Parliament and the Assembly.

I looked at the leave campaign’s open letter of 14 June 2016, a week before the referendum. It said:

“There is more than enough money to ensure that those who now get funding from the EU—including universities, scientists, family farmers, regional funds, cultural organisations and others—will continue to do so while also ensuring that we save money that can be spent on our priorities”.


That letter was signed by Mr Johnson, Mr Gove, Ms Priti Patel, Mr Grayling, Mr Duncan Smith and many others. The leader of the Conservatives in Wales, Mr Andrew Davies, said:

“Today’s announcement is hugely welcome and is further evidence that Wales would be better off out of the European Union ... we now know that funding for each and every part of the UK, including Wales, would be safe if we vote to leave”.


Carwyn Jones, the First Minister of Wales, said:

“Those who signed this letter have no more power to deliver on it than my children’s pet cat”.


However, the referendum was won by the leave faction, and there was a proposal in the 2017 Conservative manifesto to set up a UK shared prosperity fund. The manifesto said:

“We will use the structural fund money that comes back to the UK following Brexit to create a United Kingdom Shared Prosperity Fund, specifically designed to reduce inequalities between communities across our four nations ... We will consult widely on the design of the fund, including with the devolved administrations, local authorities, businesses and public bodies”.


The word used in that manifesto was “consult”, not “agree”. Certainly, there was no suggestion that they would look for consent. Similarly, the paper published in June 2017 on the agreement with the DUP, UK Government Financial Support for Northern Ireland, said that Northern Ireland’s needs would be “properly reflected” in the fund,

“which will benefit all parts of the UK”.

So it seems that the intention, as expressed in that manifesto, was for the United Kingdom Government at Westminster to hold the money bags—the structural funds—and dole out the money as they thought fit without any requirement for agreement. The mistrust probably began before then, but that is where it was intensified.

The position is this. The noble and learned Lord, Lord Morris of Aberavon, mentioned earlier the Barnett formula. If, in taking over the rules and regulations relating to regional development, the money were to be distributed under the Barnett formula, Wales would be significantly worse off. The Bevan Foundation, in its report published in conjunction with the Welsh Local Government Association last October, said that using the Barnett formula the estimated allocation of funds for Wales between 2014 and 2020 would be not the actual €2.2 billion but just €562 million. In other words, if the Barnett formula was applied to the structural funds, Wales would get one-quarter of what it was promised up until 2020. And we really do not know what will happen after that: no commitments have been made.

If this clause remains unamended, the United Kingdom Government will have the power to take over all the rules and regulations relating to regional development, agriculture, fisheries and many other areas and to change them and develop other structures as they think fit. Maybe that is a good thing, but only provided that the devolved Administrations consent to it. I cannot understand why the Government resist the concept of consent and agreement—surely, that is the way forward. I think the only reason they resist it is that they do not trust the people they are negotiating with. But they are negotiating with members of a unionist party in the United Kingdom: it does not say much for a United Kingdom if you cannot trust the other partners to that kingdom to reach a sensible agreement. That is what the fuss is about and why I support these amendments.

[Lord Forsyth of Drumlean]

My Lords, I want to follow on from what the noble Lord said. I am not going to talk about Wales, but one of the arguments often put forward by Scottish nationalists is that we must not leave the European Union because we are so dependent on the single market that is the European Union. I think we should focus tonight on the single market that is the United Kingdom. I listened to the noble Lord and I take his point about the Barnett formula. He is absolutely right that it is extremely generous to Scotland and very unfair to Wales. In my opinion, resources should be distributed according to need and not on the basis of a formula that has been amended according to population. But if it is to be the case that the Welsh Assembly and the Scottish Parliament are to have a veto on these matters, what is the prospect of Wales being able to get a fairer share without that being vetoed by Scotland? It is a matter for the United Kingdom Government to decide for the United Kingdom as a whole, and for the single market that is the United Kingdom as a whole.

I have to say that I think the amendments from the noble and learned Lord, Lord Hope, are naive. We are faced with an Administration in Scotland who are absolutely determined to break up the United Kingdom —that is their purpose. We can have all the talks we want with the political Administration, until the crack of doom, but hey ho, we will find that they are saying something completely different from the civil servants. The civil servants will take exactly the kind of sensible, pragmatic, legalistic approach that the noble and learned Lord, Lord Hope, has. But the politicians have another agenda—an agenda which has been set back by the courage of the Prime Minister—which is to destroy the United Kingdom. As a unionist, I have an agenda to make sure that every part of the United Kingdom is treated fairly and that there is no veto for any part of it. We have four parliaments in the United Kingdom, but we have only one United Kingdom Parliament, and that is this.

When Lord Sewel produced his convention, it was greeted with great enthusiasm by the Scottish Parliament. If the noble and learned Lord looks at the record, he will find that this Parliament has legislated for the Scottish Parliament to a very considerable degree—mainly because, until recently, it sat for only one and a half days a week on legislation and so did not have enough time. Now we are in the absurd position where, when a perfectly sensible accommodation has been offered to them by the United Kingdom Parliament, the posturing of Ministers in the Scottish Government—which is about trying to create division and turn everything into a constitutional crisis—is against the interests of having a single market, which they say is essential to the Scottish economy in the case of Europe. Their position is that they do not want any of these powers to come to Wales, Scotland or the United Kingdom; they wish them to remain in Brussels. It is an utterly hypocritical stance. They would rather these matters were decided in Brussels, where even the Scottish Nationals elected as Members of Parliament down the Corridor would have no say. It is political gamesmanship and we would be foolish to accede to it.

We should proceed with the Bill, unamended, and ensure that the United Kingdom Government can work with the Parliaments of the various parts of the United Kingdom to preserve that single market—which, incidentally, is worth four times as much to the people of Scotland in income, jobs and everything else than the single market they purport to defend, which is that of the European Union.

This is a great deal of heat and waffle perpetrated by people who do not like the result of the referendum. They are terribly keen on referenda but find it difficult to accept the results. They argue that we have to have another referendum on independence and we have to have another referendum on Europe. I say to the noble Lord, who is normally very courteous, that to describe in such pejorative terms the 17.4 million people in the United Kingdom who voted to leave—400,000 of whom were Scottish nationalists—is following the course of his leader, who used disgraceful language to insult the 17.4 million people only this week.

I hope that the House will reject these amendments so we can get on with the task of making a success of the United Kingdom, which at last has the powers and authority to ensure that all parts of our country benefit from being able to determine our own affairs.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I support these amendments, and in particular Amendment 5. The amendment proposed by the noble Lord, Lord Wigley, is a buttressing and an endorsement of the Sewel convention. As the House will recollect, the convention refers to the devolved authorities in this context: that the mother Parliament will not legislate in any way that is contrary to the will of the devolved authorities save in the most exceptional circumstances. The Westminster Parliament could not have gone any further at all without abrogating—

[Lord Thomas of Gresford (LD)]

I think that the noble Lord is addressing Amendment 5, which is not in this group—and I shall no doubt be following in his footsteps when we do get to that amendment.

[Lord Elystan-Morgan]

I am pleased to stand corrected and apologise.