Brexit: Withdrawal Agreement and Political Declaration

Lord Thomas of Gresford Excerpts

Thursday 6th December 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the noble Baroness, Lady Crawley, really ought not to have tempted me by talking about backstop as a rugby term. My mind went back to a muddy afternoon in Blaenau Ffestiniog when I was taken out of the pack, warm and comfortable as it was, and told to play at full-back, something I had never done before. Somebody kicked the ball over my head. I turned round to see who would deal with it and thought, “See, Ma? It’s me. I’m the backstop”. A sense of panic fell in as I could hear the thundering footsteps behind me. I was flattened, although I got the ball.

I feel for the Prime Minister as the ball goes over her head. She has been flattened many times in Brussels, in Salzburg and elsewhere. She has got up, plastered in mud, still holding on to the ball. This time, the heavy footsteps and the hard breathing behind her are not from the Opposition but from half of her own team, led by Boris Johnson, that well-known spear tackler of 12 year-olds, and the formidable Ulster pack. They are determined to prise the ball away from her. When she got up this time, there was a loud hissing sound as the ball began to deflate.

From the bench, she brought on Boomer Cox, as we affectionately called him at the Bar. He put up a solid political defence, as you would expect, but yesterday we saw what he really thought in his advice of 13 November. I agreed with the noble and learned Lord, Lord Goldsmith, yesterday—a rather unusual thing—when he said that that advice was well written and spot-on.

The withdrawal agreement does more than commit the United Kingdom to withdraw from the EU; it defines our relationship with the EU for the foreseeable future. Nobody realistically thinks that we can come to a final agreement with the EU by 2020. In fashioning a backstop, Mrs May rejected the EU’s suggestion that Northern Ireland should have special status. In order to placate the DUP, representing a minority view in Northern Ireland, she proposed that the whole of the United Kingdom should be in a special customs territory. It is no surprise that the EU negotiators seized that suggestion with both hands. This means frictionless trade will be maintained as much between Dover and Calais as between the north and south of Ireland. We remain in the special customs territory until that mystical overall agreement has been fashioned. However, one side or the other could notify the joint committee set up under the agreement that this arrangement is no longer necessary to protect the 1998 Good Friday agreement in all its dimensions. If there is a dispute, a five-man arbitration panel will decide the issue, taking its interpretation of Union law from the Court of Justice of the European Union.

On Monday the Attorney-General argued in his Statement that the arbitration panel would consider, for instance, whether either party was using its “best endeavours” or acting “in good faith”. However, in his written advice to the Prime Minister, he came to the nub of the problem: what if both parties were acting in good faith in their own legitimate interests? That is a distinct possibility. When his Statement was read in this House on Monday by the noble and learned Lord, Lord Keen, I asked, as to whether the protocol is still necessary for the 1998 agreement:

“Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine ... ? If that arbitration panel says that it is still necessary … we remain in the backstop. We remain in the single customs territory”.—[Official Report, 3/12/18; col. 884.]


In paragraph 27 of his written advice to the Prime Minister, the Attorney-General went further than I had, saying that,

“whichever party attempted to submit a notification, it is extremely difficult to see how a five member arbitral panel made up of lawyers who were independent of the parties would be prepared to make a judgment as political as whether the Protocol is no longer necessary”.

The panel would refuse to come to any conclusion.

Scenarios are in fashion. Suppose someone invents a new technology and claims that it creates all the necessary customs and regulatory checks at the Irish border. The United Kingdom Government develop it, manufacture it and put it in place at the 300 or so crossing points between the north and south of Ireland. Then the United Kingdom notifies the joint committee that the single customs territory is no longer necessary. The European Union would naturally turn to Ireland and ask, “Is this okay with you?” Ireland might say, “No, it doesn’t do the job it’s hyped up to do. All this new technology is untested; we don’t know if it will work. You’ll risk starting up the Troubles again”, so there is a dispute. Both sides are acting in good faith, but the dispute is submitted to the arbitration panel.

Consider the implications. The five lawyers then decide a question of huge and costly practical significance, economically and—importantly—with an impact on security in Northern Ireland. The Attorney-General, in his advice to the Prime Minister, thinks they would decline the task, and I think he is right. Blow the whistle, ref. The game is over for this withdrawal agreement. It is time for the hot bath, a few pints in the bar and maybe a sing-song; perhaps:

“Drake he’s in his hammock an’ a thousand miles away,


(Capten, art tha sleepin’ there below?)”.

The Brexit buccaneers are a full 400 years too late.

European Council

Lord Thomas of Gresford Excerpts

Monday 26th March 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

Perhaps I might ask the Leader to answer the question that was put to her by the noble and learned Lord, Lord Hope. If we remain subject to the jurisdiction of the ECJ during the transition or implementation period, will we retain a British judge on the European Court of Justice, as we have hitherto had?

[Baroness Evans of Bowes Park]

As I have said, obviously we will continue to be under the jurisdiction of the ECJ during the implementation period. After that, we leave the ECJ.

[Lord Thomas of Gresford]

I am sorry, that does not answer my question. Will we retain a British judge on the European Court of Justice, as we have now, if we are still subject to its jurisdiction?

[Baroness Evans of Bowes Park]

That will be part of the negotiations.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

2nd reading (Hansard): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

I heartily endorse everything that the noble Baroness, Lady Kennedy, said about the reciprocity of the law across Europe, particularly in the field of crime and the pursuit of criminals, but I wish to focus on the devolution provisions in the Bill.

Clause 11 is agreed on all sides to be defective and in need of amendment. The Government promised to bring forward an amendment on Report in the Commons but failed. I think we all assumed that negotiations were going on backstage with the devolved Administrations, but that was not the case. We were told in a meeting on Monday with Mark Drakeford of the Welsh Government and Michael Russell of the Scottish Government, in the presence of the relevant government Ministers, that they had not been consulted on the proposed amendment to Clause 11 at all. We do not want to be presented at some stage in Committee with a government amendment that has been drafted without even consultation with, let alone the agreement of, Cardiff and Edinburgh. What would we do with it? The whole point of the exception taken to Clause 11 is the lack of consultation and the evident incomprehension of the principles of devolution by Ministers. Both Cardiff and Edinburgh, with the full support of every elected member of every political party, rightly conclude that, as currently drafted, Clause 11 and Schedules 2 and 3 put all the cards in the hands of Westminster.

The proposal in the Bill is that the UK Government will dictate, with no requirement for consultation or agreement, how the powers repatriated under retained EU law should or should not be parcelled out to Cardiff, Edinburgh and Belfast, even in areas of policy where the devolved Administrations have full and exclusive competence. Not only that, but UK Ministers are given power to alter not merely the Scotland Act and the Government of Wales Act but the existing legislation passed by the Scottish Parliament and the Welsh Assembly—and by ministerial decree, through statutory instruments and Orders in Council. Welsh and Scottish Ministers have no such powers.

The noble and learned Lord, Lord Hope, described the architecture of the Bill as misguided and ill-informed, and my noble friend Lord Newby described the Government’s approach as a combination of arrogance and incompetence. Nowhere are these descriptions truer than in this mishmash of the devolution settlements.

The powers repatriated from Brussels will include funding and policy-making in many fields. For example, take the European Regional Development Fund and the European Social Fund. Brussels has parcelled these out across 28 member states on the basis of need. In the 2014-20 European budget, Wales benefits by over £2 billion. With matched funding, a total investment of £3 billion is available to the Welsh Government to support people into work and training, on youth employment, research and innovation, business competitiveness, renewable energy and energy efficiency, and connectivity and urban development. All these are fully devolved competences for the Welsh Government.

But the much-criticised and hoary old Barnett formula, which is the current Westminster vehicle for funding Cardiff, Edinburgh and Belfast from UK government sources, is divided not on the basis of need but on a simple population headcount. Under the provisions of the Bill, there would be nothing to prevent Ministers, by statutory instrument and without the consent of the devolved Administrations, departing from the Brussels basis of need to the Barnett model of population count. English politics and English interests are bound to be engaged in funding decisions. After all, in the policy areas devolved to the devolved Administrations, Westminster and its Ministers act as an English Parliament. English interests are going to intrude.

All are agreed that there will be a need for new UK frameworks, but the Bill hands all the power to UK government Ministers. They will be able to dictate to the suppliant and powerless devolved Administrations whatever frameworks they think “appropriate” in whatever fields they choose.

The Bill cannot be chuckled through this House as David Davis is trying to chuckle his way through European negotiations. Someone in this Government has to take a grip, to make decisions and determine both a destination and a course to get there.

Step 1: the devolution proposals in the Bill have already failed the test and there is no time while the Bill is in this House to go through with it. They should be extracted from the Bill forthwith. Clause 11, Schedules 2 and 3 and any other related provisions should be taken out of the Bill.

Step 2: the Government should demand from their DUP supporters that in return for the £1 billion bung they have been given, they should make the compromises necessary to revive the Northern Ireland Assembly and Executive. If Paisley could sit down with McGuinness, the current DUP leadership owes it to their countrymen to do the same.

Step 3: the Government should negotiate with the devolved Administrations on the basis of parity of esteem and respect for the devolution principles. They should agree the areas for the new frameworks that will be required.

Step 4: they should bring forward a new Bill on an agreed basis, with legislative consent orders ready to go. These current provisions are not fit for purpose.

Brexit Negotiations

Lord Thomas of Gresford Excerpts

Monday 11th December 2017 Lords Chamber

[Baroness Evans of Bowes Park]

My noble and learned friend is right.

[Lord Thomas of Gresford (LD)]

Will the noble Baroness help me on this question of full regulatory alignment between Northern Ireland and the Irish Republic? Who is going to determine that? Will it be the Supreme Court of Ireland, the Supreme Court of the United Kingdom or the European Court of Justice? She said about 10 minutes ago that the present situation is one of full regulatory alignment. What happens if the status quo changes?

[Baroness Evans of Bowes Park]

As I have said on a number of occasions, alignment is about pursing the same objectives. The same goals can be achieved by different means, and it does not need to mean regulatory harmonisation. Indeed, the Taoiseach has said that not everything has to be the same.

Syria: UK Military Action

Lord Thomas of Gresford Excerpts

Wednesday 2nd December 2015 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I speak for the many in my party who are opposed to beginning bombing the Daesh forces in Syria. First, there is the question of legality. A number of your Lordships have quoted Resolution 2249, but not in full. It:

“Calls upon Member States … to take all necessary measures, in compliance with international … and humanitarian law”.

Those final words have been omitted from all noble Lords’ quotations from the resolution. They mean that, in order for there to be legal force, it must be in self-defence or collective self-defence. I accept that that is the case. What I quarrel with is whether the proposed solution is proportionate in answer to the threat and, indeed, to the atrocities that have taken place in neighbouring countries.

I say that in this context. As the noble and right reverend Lord, Lord Harries, said, Daesh has melted into the population in Raqqa. This is not a supportive population. These are not citizens for whom Daesh has any responsibility. It could not care less what happens to the citizens—the men, women and children—who are left behind in Raqqa. If they are bombed and killed, it is of no concern to Daesh. They are to be regarded as victims and in the firing line of our bombs. The noble Lord, Lord King, referred to the beauty of Brimstone. I do not believe that British bombs are capable of sorting out the difference between who is a terrorist and who is not, since they all dress the same in Raqqa at this time.

The noble Lord, Lord Hague, in a brilliant maiden speech, said that whatever we do it must be effective. Let us look at Iraq. We have been bombing in Iraq for well over a year, and in Iraq there are some 650,000 armed police and 350,000 in the army. By bombing and with the support of the boots on the ground, 30% of the territory Daesh took has been recovered. That is not a brilliant and immediate success. If we move over the border into Syria, where we have no invitation to be, what boots on the ground are we looking at? Where do they come from? Who leads them? What communication is there with our proposed forces who will do the bombing? What co-ordination will there be? My noble friend said earlier that tribal loyalties will shift. How reliable are they? Are they allies we can count on?

Finally, when they have finished—let us assume it is successful and Daesh is destroyed—what happens then? Will the forces of Assad and the Free Syrian Army then turn upon each other for the final of this contest? If so, will we not have on the one side western forces who cannot desert their allies—the Free Syrian Army—and Russian forces who cannot desert their allies—Assad’s Syrian Arab Army? What happens then? Do we not have the makings of a proxy war? We are getting into very deep and difficult troubles, and I know that many members of my party support that position.

Syria: Foreign Affairs Committee Report

Lord Thomas of Gresford Excerpts

Thursday 26th November 2015 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, the extremists are already attacking us. That is why doing nothing is not an option. We are already in this country a target for ISIL. We know we are because we have been able to avoid at least seven attempts to launch a direct terrorist attack here in the UK. The noble Lord asks about the ground troops that are already in place in Syria. At the moment, they are starting to make progress in defeating ISIL. We have to be in there too because, together, we will be able to achieve the success that we need to achieve.

[Lord Thomas of Gresford (LD)]

My Lords, if the ground forces to which the Leader has referred were defeated or looked as though they were losing, would the British Government send in ground troops to make sure that they did not lose?

[Baroness Stowell of Beeston]

I have been clear that our proposal is about providing air support to existing ground forces. We are doing it this way because we think this is one of the key lessons that we learned from previous military interventions over the last decade or so. So no, this is about local ground forces that are already there.

House of Lords: Appointments

Lord Thomas of Gresford Excerpts

Thursday 25th June 2015 Lords Chamber

[Baroness Stowell of Beeston]

My noble friend refers to what was in the coalition agreement. I stress that it was in the coalition agreement; it was not in the Conservative Party manifesto in 2010 or 2015. One of the things we were able to introduce in the previous Parliament is the facility for permanent retirement from this House, which is now a route we can all consider for departure at the right time.

[Lord Thomas of Gresford (LD)]

My Lords, the Childcare Bill was introduced in this House last week. It applies only to children in England. It will have the benefit of full scrutiny by this House and the other place and its committees. At the same time, primary legislation passed by the Parliaments of Scotland, Wales and Northern Ireland has no such second examination, consideration or scrutiny. Is it not time for us to have a federal United Kingdom second Chamber, wholly elected, and dispose of this place altogether?

[Baroness Stowell of Beeston]

No, I do not agree with the noble Lord. The proposals that my party made in our manifesto at the election for constitutional change and greater powers for all parts of the United Kingdom are the mandate on which we are governing and are what we are getting on with delivering.

Draft House of Lords Reform Bill

Lord Thomas of Gresford Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I suppose that, like the noble Lord, Lord Brooke of Alverthorpe, I must declare an interest, as I am the newly elected president of the Lloyd George Society. Your Lordships may recall that Lloyd George did not have much of an opinion of this place. Indeed, he said that it was 500 ordinary men, chosen accidentally from among the unemployed. Your Lordships will gather from that that we do not do deference very well in north Wales. It is part of my DNA; I can tell the noble Lord, Lord Brooke, that.

It will not surprise your Lordships to know that in my first election, in West Flintshire in 1964, I campaigned on three principles. The first was a Parliament for Wales; the second was proportional representation; and the third was abolition of the House of Lords. I found a fellow toiler in my friend, colleague and adversary, the late Lord Williams of Mostyn, who came from 20 or 30 miles from my home town and was educated similarly to me. Although we were in different parties, we shared the same values. On past occasions when we debated House of Lords reform, he and I walked almost alone, together, through the “100 per cent elected second Chamber” Lobby. We continued to do so over all that time.

Some three weeks ago I was invited to speak at a dinner of Flintshire County Council, at which I was told not to be too political. You are not allowed to be political at these events where there are lots of people in chains from all the county councils and local councils around. I indulged in a little fantasy. Since the House of Lords is so perfect in many people’s eyes, what would Flintshire County Council look like if it were composed in the same way? Ten of the councillors would be hereditary. Some of my Liberal friends on that county council have admirable sons and grandsons who could inherit their seats. Some 50 would be appointed for life by the local constituency parties. I am sure that they would be very glad to be relieved of the sort of things they are doing at the moment, such as knocking on doors, giving out leaflets and canvassing. Then we would have to think of the others—perhaps the Bishop of St Asaph; the former commanding officer of the Royal Welsh Fusiliers TA; the former commodore of HMS “Rhyl”, and various other people of a similar variety. The suggestion that drew the sharpest intake of breath was that former chief executives of local authorities should be appointed to this body for life.

It is absurd, is it not? I am entirely with the noble Lord, Lord Dubs, on elections. There is nothing wrong with knocking on doors, meeting people and talking to them about their problems or pushing leaflets through doors, as I have said. We on the Liberal Benches are not “too posh to push”. We would welcome elections if they came along.

It is said that this place works, but only because the other place fails. Noble Lords who were present during the final moments of the passage of the legal aid Bill, as I was, will recall that many on the opposition and Cross Benches complained about the lack of time that had been given to that Bill due to the guillotine and programme Motions that had been applied in the other place, which meant that the issues that we discussed at length had not been taken up in the House of Commons at all. This place works only because there is a void that we have to fill. We are the people who are lobbied and have to make changes to hastily introduced legislation.

What we are facing here in opposition to the Bill are the forces of inertia, however it is described. Lloyd George understood and even sympathised with this notion. After all, he had spent six years in coalition with the Tories. He was the Nick Clegg of his day, you might say. He had the Nick Clegg experience. Speaking at the National Liberal Club in 1924, Lloyd George said:

“Toryism undoubtedly makes an appeal to one essential mood of human nature—that of fundamental inertia; and that is sometimes a real human need … every man tends to become a Tory himself when tired, disinclined for exertion, wishing to be left alone, cross with anyone who proposes new efforts, and, may I add, tempted to view the drink traffic with an unusually friendly eye. Toryism makes an inherent and instinctive appeal to very prevalent moods in human nature—contentment with your own lot; indifference to the lot of others, often through ignorance of the conditions or the imagination to realise them; rooted habits and prejudices”.

However, Toryism, as Lloyd George defined it, is just as active on the opposition Benches as it is on these Benches. “Not now”, says the noble Baroness the former Leader of the House, “Not like this”. “Give us a constitutional convention”, others cry—anything except action. Toryism on all sides of the House, said Lloyd George, would, if left alone, do nothing. Liberals would break the soil with the plough.

[Lord Morgan]

Will the noble Lord kindly explain to the House why Lloyd George was against an elected House of Lords?

--- Later in debate ---

[Lord Thomas of Gresford]

He was for the abolition of the House of Lords, as I recall.