European Union: Trading Arrangements

Lord Wallace of Saltaire Excerpts

Thursday 30th January 2020 Lords Chamber

[Lord Callanan]

I thank the noble Lord for the close interest he takes in dispute resolution. Perhaps he should be declaring an interest, with his long experience of both litigating for, and resolving disputes with, Her Majesty’s Government. Of course, he raises an important point. He is right that it cannot be the European Court of Justice, and we will want to discuss with our European partners a proper, independent arbitration process for any disputes that arise, although we hope that none will.

[Lord Wallace of Saltaire (LD)]

My Lords, at the time of the referendum, Boris Johnson, now our Prime Minister, assured voters that frictionless trade would continue. That has now been completely forgotten, and he has said recently that we have to accept that there will be barriers to trade as part of what we have to get used to. Is the Minister’s commitment on dynamic alignment the same sort of possibly short-term commitment as that which Boris Johnson made three years ago?

[Lord Callanan]

No, our commitment is that we will not be entering into a process of dynamic alignment; we think that decisions on future laws governing this country should be made in this Parliament, and we will not be subcontracting that job to the European Union.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

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

As the noble Baroness, Lady Hayter, informed us, we have just discovered that the National Assembly of Wales has voted not to consent to those parts of the Bill on which we sought consent. We are of course disappointed that the devolved legislatures have withheld consent and we recognise the significance of proceeding without it. Nevertheless, these are exceptional circumstances and the Bill must proceed so that we can deliver on the referendum result and leave the EU by the end of this month.

[Lord Wallace of Saltaire (LD)]

My Lords, as unamended, the clause we are debating restates the principle of parliamentary sovereignty. Many of us considered that the devolution settlement had modified the Victorian concept of unitary sovereignty. In Committee, the noble and learned Lord, Lord Keen, went out of his way to reassert that AV Dicey’s views on parliamentary sovereignty—that the imperial Parliament is supreme and cannot share legislative power with other Assemblies—is what this clause means. Does the Minister not therefore recognise that the inclusion of this clause as it stands undermines the conventions established by the devolution settlement?

[Lord Callanan]

I am not sure I want to get into an arcane legal debate with the noble Lord, my noble and learned friend Lord Keen and others. I do not accept what the noble Lord says; I do not think this undermines the settlement.

We will of course continue to seek legislative consent. We will continue to take on board views and will work with the devolved Administrations on future legislation, whether related to EU exit or otherwise, just as we always have.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

Debate on whether Clause 38 should stand part of the Bill.

[Lord Wallace of Saltaire (LD)]

My Lords, Clause 38 is purely declaratory: it has no effect whatsoever, except to appease the appetite of the hard ideologues on the Conservative right. The Select Committee on the Constitution notes explicitly that

“this Clause has no legal effect”.

Its opening phrase,

“It is recognised that the Parliament of the United Kingdom is sovereign”,


is poorly drafted. It does not say who recognises it, or what effect that might conceivably have. It ought, at least, be an active declaration of the principle of parliamentary sovereignty.

The model for such a declaration was, of course, the ultimate Henry VIII clause in the Statute in Restraint of Appeals 1532, which asserts that,

“this realm of England is an empire”.

It did not surprise me when I checked the date of that statute on Wikipedia to find an accompanying side reference to Sir John Redwood calling for the full restoration of our imperial sovereignty by excluding any appeals to any continental court. This clause is about the myths of English identity and history far more than about current practice.

The foreign appeals which the 1532 Act were restraining were to the Pope in Rome, rather than to any political institution. It has often struck me as odd and eccentric that several of the most ardent English nationalists and Brexiteers are right-wing Catholics, some of them converts, who regard the current Pope critically as tending towards a dangerous liberalism rather than the dogmatic orthodoxy that they prefer. They have nevertheless embraced an English doctrine which is rooted in our Protestant Reformation and its rejection of the universalism of the Catholic Church.

Since the 16th century, the doctrine of sovereignty has evolved a great deal and been the subject of a great deal of scholarship, some of which I had to teach when a university teacher. As Dutch, Danish, English and other lawyers have argued, national sovereignty is embedded in a framework of international law, which is necessary to enable trade and peaceful interchange among nation states. Under our system of parliamentary sovereignty, trade agreements and treaties have to be transposed into domestic law, but Parliament accepts that it cannot renegotiate what the Government have agreed and that international treaties therefore limit absolute parliamentary sovereignty. That is why it is inconsistent with any coherent doctrine of parliamentary sovereignty for a Government to neglect to carry Parliament with them as they negotiate major treaties which have significant implications for domestic law and domestic economic life.

International law and domestic law—as the Minister who is to answer knows extremely well—are closely intertwined. This Conservative Government, like their predecessors, stress the depth of their commitment to the legal, institutionalised international order. As the ideologues on the Conservative Benches rejected the constraints of European Union law, they will still be hemmed in by wider international commitments on human rights, standards, aviation safety, environmental law, shipping, data exchange and a great deal more.

Purists within the United States have gone further than English nationalists and argued that the perfection of the American constitution and the democracy it encapsulates must override the constraints of international law and treaties. Justice Antonin Scalia, appointed by President Reagan to the US Supreme Court, explicitly argued this exceptionalist view that international law could in no way override American law but, so far as I know, no right-wing English lawyer has gone quite so far yet.

The cry of the Vote Leave campaign was to re-establish parliamentary sovereignty by leaving the EU. Now that we are leaving, we hear a different tune, calling on Parliament to accept that it should not examine the process of government too closely. I listened this morning to the noble Lord, Lord Bethell, no doubt reading from his brief when he said that it is vital that we restore the traditional relationship between government and Parliament. I understand that to mean: that Parliament should accept that majority government has now returned; that it should accept what the Government propose without significant amendment, particularly in the second Chamber; and that the key principle of Britain’s unwritten constitution is that the Queen’s government must be carried on without let or hindrance. That is not easily compatible with parliamentary sovereignty.

This clause therefore declares a half-truth. The relationship between Parliament and government in reality remains contested. The noble and learned Lord, Lord Woolf, spoke yesterday of the importance of maintaining the separation of powers between Executive, Parliament and judiciary, but there is nothing here to suggest that the judiciary can in any way be a counterbalance to government. If I correctly understood what the Prime Minister implied in Prime Minister’s Questions yesterday, he thinks it improper for judges to play such a role.

Twice in the last week, we have probed the promise in the Government’s manifesto and the Queen’s Speech to establish within the next 12 months, as the manifesto said, a commission on the constitution, justice and democracy. We have gathered the impression from the incoherence of ministerial answers that the Government are unsure how far they wish to open up such underlying questions of our constitutional and democratic order. It may even be that some within the Government now regret that the commitment has been made, but the commitment to a constitutional commission has been made and these questions will have to be addressed.

This clause, however, with its very poor drafting and its failure to refer in way to the unavoidable influence of European law on the UK as we negotiate a close future relationship, as the political declaration makes clear, does not offer any useful contribution to that task or to providing clarity for our political, legal and constitutional debate.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.

[Lord Wallace of Saltaire]

My Lords, I entirely accept that. I am merely talking about those who have written about this. I am talking, as my noble colleague on the Labour Front Bench suggested, about those who have been agitating for clauses such as this, who have been expounding—the Martin Howes of this world—and not, of course, the average voter, who has much a simpler collection of views on all this. We know that the vote came for many reasons, but for those who have written and spoken about the justification and the necessity for this, in overlapping groups, I think that the terms I used were justified. We are talking about a view of English exceptionalism, which perhaps even some Scots share—a view of English identity and our difference from the continent, which I do not share but which I was taught at university. I have learned a great deal about it and I dispute it.

[Lord Keen of Elie]

My Lords, even though the noble Lord may seek to narrow down the characterisation he advanced in his opening, I still do not accept it. It appears to me to go far too far in its assertion of who might be concerned to restate and recognise the sovereignty of our Parliament, and why. I will make two comments on his observations. He did not mention the duality principle, but he ought to bear it in mind because, of course, while the Executive may enter into obligations at the level of international law, they have no impact on domestic law unless and until they are brought into domestic law by this Parliament. So there is no question of parliamentary sovereignty being undermined in any sense by the ability of the Executive to enter into treaties, and to have and enjoy that treaty-making power. That is simply not correct.

On the noble Lord’s observations about the separation of powers and the position of the judiciary, I invite him to revisit, as am sure he has often done before, the work of Dicey on the constitution—I think the 1887 edition was the last one that Dicey himself edited—in which he makes very clear the position of the judiciary vis-à-vis the sovereignty of Parliament.

[Lord Wallace of Saltaire]

I have indeed read Dicey and I am conscious that his views on a number of issues were influenced by his growing opposition to home rule.

[Lord Keen of Elie]

It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.

I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.

The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.

[Lord Keen of Elie]

It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.

As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.

[Lord Wallace of Saltaire]

My Lords, in that case, I find the phrase “unnecessary repetition” entirely appropriate to this clause as a description of what it is for. I referred to the duality principle; I remind the noble and learned Lord that the United States also has that principle, and that the view of the exceptional position of the American constitution and its relationship with international law means that, on occasion, the Senate turns down treaties that the United States has negotiated, sometimes to the extreme discomfort of the international legal order.

[Lord Keen of Elie]

I think we are aware that it did not join the League of Nations.

[Lord Wallace of Saltaire]

Not just the League of Nations—there was also withdrawal from the joint agreement with Iran, although that was an executive act.

I was saying that our Parliament, which is sovereign, is constrained by acceptance of the legal order. On the delicate relationship between Parliament and government over the negotiation of treaties, particularly trade treaties, we need to bear that in mind, because, as a Parliament, we have never rejected a treaty that a Government have negotiated. That is one reason why many of us are still pressing for that. I wish merely to mark that these issues need to be examined in more detail, that the Government have committed themselves to some sort of commission on the constitution, the judiciary and democracy, and that as we leave the European Union, it is entirely appropriate—indeed, necessary—that we re-examine some of these questions about which, as the noble and learned Lord and I have shown in our discussions, there is some contestation.

Clause 38 agreed.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

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

We took him at his word, and Amendment 27—which was in the previous Bill and was, after all, a government amendment—was a step in that direction. I am sure there would have been amendments to Clause 31 in that Bill as well. It seemed to me to respect an undertaking given to us by the then Secretary of State. I ask the Minister whether the Government are still behind those words said by David Davis to the European Union Committee and, if so, how they will ensure that they live up to those words.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:

“This Bill is of the highest constitutional significance.”


One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.

The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.

The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.

The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.

We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.

Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.

There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.

[Lord Hamilton of Epsom (Con)]

My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.

As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.

[Lord Wallace of Saltaire]

My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.

[Lord Hamilton of Epsom]

Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Saltaire Excerpts

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

[Lord Wallace of Saltaire (LD)]

My Lords, we all accept that the decision to leave has now been made and that this Bill will go through, but what sort of future relationship the Government will negotiate once the Bill is through remains entirely unclear. Different interpretations leak out from different Ministers, Conservative newspapers and MPs. The Prime Minister himself is still in “cake and eat it” mode, wavering between promises of regulatory divergence and assurances that we will remain close to what he sometimes calls “our European friends”.

I will focus here on the process by which Parliament continues to scrutinise the transition we are entering into, from EU membership to association. I was shocked when Liberal Democrat Peers were told in a ministerial briefing last week that there was now no need for the previous Bill’s clause guaranteeing parliamentary scrutiny of future trade negotiations because the result of December’s election had given the Government sufficient mandate to negotiate them in whatever form they may be able to agree.

There will be difficult trade-offs to be struck in the negotiations about our future relationship. The political declaration sets out an agenda but does not give much indication of how these trade-offs will be struck—between fishery concessions and the interests of our financial services sector; between acceptance of some continuing role for the European Court of Justice and insistence on the purity of UK legal sovereignty.

Any democratic Government need to be held to account not just once every five years but as they continue to make policy month by month. That is the difference between a populist electoral dictatorship and a functioning constitutional democracy. I was reading a book on American populism last week, and noted that George Wallace—my namesake, who was the populist Governor of Alabama—was fond of saying in speeches that the will of the people was more important than the law. Some supporters of this Government, even in this House, have come close to saying the same thing.

In the Queen’s Speech debate last week, the noble Lord, Lord Strathclyde, suggested that the Lords, as Parliament’s second Chamber, should rarely oppose the Government on this Bill or, indeed, on other forthcoming legislation. He is right that a second Chamber should not block legislation in principle, but he is wrong to argue that we should not, entirely properly, ask the Government and the Commons to think again on the content and detail of legislation set before us.

After the speech of the noble Lord, Lord Strathclyde, I checked with the Library on the pattern of Lords’ defeats of the Government over the years. Of course, when the noble Lord first entered our Chamber, the Conservatives had a permanent majority, defeating the Labour Government 126 times back in 1975-76. Since most hereditaries were excluded in 1997, the highest number of defeats of the Government in any one Session was in 2002-03, at 88 defeats, when the Leader of the Opposition—the person whom last week the noble Lord called on to behave with caution and restraint—was of course the noble Lord, Lord Strathclyde, himself. He deplored in last week’s debate that the Conservative Government had been defeated in almost 50% of the whipped Divisions in the 2016-17 Session, calling it an “absurdly high figure”. However, in the 2004-05 Session, the Labour Government were defeated in 58% of such Divisions, again with the noble Lord, Lord Strathclyde, leading the largest opposition group. I rest my case.

There are constitutional issues in this Bill which we are entitled to draw attention to and to which a wise Government should listen. While Clause 31 of the previous Bill, asserting Parliament’s role in continuing scrutiny, has disappeared, we now have the new Clause 38 nevertheless asserting that parliamentary sovereignty is absolute. It is there not for any practical purpose but to throw a bone to the hard nationalists of the European Research Group and the Bruges Group. Sovereignty can never be absolute unless a state disengages from all its obligations under international law. The balance between the fundamental principles of law and the untrammelled power of the Government when controlling a majority in the Commons has been argued over since the time of Justice Coke and others, in the early 17th century.

Insistence on the unlimited power of the Government in Parliament to override our devolved Assemblies would now be unwise as well, and arguably close to unconstitutional in itself. This too we will challenge the Government to justify, in Committee and perhaps even on Report.

Brexit

Lord Wallace of Saltaire Excerpts

Saturday 19th October 2019 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, the noble Lord, Lord Lamont, has just said that remainers do not admit that the EU is not just an economic project. The European Union has always been a political project. The memorandum presented to Harold Macmillan in 1961 made it very clear that it was in our political interests to join the European Economic Community and that the Washington Administration were strongly of the opinion that Britain should do so. In Sir Alec Douglas-Home’s speech moving the Second Reading of the European Union accession Bill, he also spelled out that there was a political dimension to it. It was never the case that we were never told that it was more than just a common market. This is a peace project. It is how we deal with our neighbours, and it is important that we do deal with our neighbours.

This has been a long debate. I have listened carefully but have found it extremely difficult to hear any positive arguments for the deal. The arguments are mainly of exhaustion—“let’s get Brexit done”—or that there is too much uncertainty and at least this will end it, or that at least it is better than no deal. Another argument is, “It’s not too damaging economically. Well, it’s a bit damaging but not as damaging as some of the economic forecasts have suggested”. So what are the Government promising us that we will gain in return for these economic costs, whether they are modest or severe?

Here, I fear that we enter a looking-glass world in which facts and evidence are turned on their head. I heard Jacob Rees-Mogg on the radio yesterday saying that leaving the EU with this deal will strengthen the UK. No one in this debate has agreed with that idiotic remark. Many of us are deeply concerned that this is the beginning of the break-up of the United Kingdom. It takes us towards the potential reunification of Ireland, and certainly it takes us further towards the independence of Scotland. As the son of a Scot and as someone who has a son currently living in Edinburgh, this is a matter of personal, as well as national, concern.

We are told that we will regain sovereignty over regulations and standards but it has not been explained why that is so important. We are also assured that we want not to lower any of the standards but to raise them. However, perhaps we want to raise them idiosyncratically so that we have different good ones compared with those of the European Union and America. Why that is so important, the Government have totally failed to explain.

The Prime Minister says in his Statement that,

“the greatest single restoration of national sovereignty in our parliamentary history”,

is part of the aim. I much prefer what was said by Geoffrey Howe—a man I much admired on the Conservative Benches—when he talked about the need for Britain to learn how to share sovereignty and how we would hold on to greater influence over our own affairs if we learned to share with our natural friends and partners. After all, we do not control our future prosperity. That lies in the hands of companies such as Hitachi, Nissan, Tata, Mercedes-Benz and Airbus, with their headquarters outside this country. When, and if, we leave the European Union, we will discover whether they are willing to stay committed to this country. If they move out and if foreign investment dries up, we will be in deep trouble and the economic assessments will prove to have been too modest in their gloom.

Then we are told that we can negotiate our own free trade agreements to our greater advantage. With whom? With India, China, Russia and the United States? Would the United States be more generous to the UK than it has been with the EU? That looks extremely unlikely. The world is at present moving away from free trade, as is the United States, and we in our turn are moving away from the world’s largest free trade bloc and single market.

Then we are told that leaving the EU will free us from bureaucracy. We have heard about the need to have new rules of origin, VAT receipts and refunds, and customs checks. That is a substantial extra collection of bureaucracy on cross-border trade. The withdrawal agreement and the future framework talk about a Joint Committee with a range of specialised committees that will manage our new relationship. We will need very large numbers of extra officials to manage those, as well as doubling the staff in our bilateral embassies because we will no longer be able to negotiate multilaterally in Brussels.

I want to turn to the future framework. I strongly agree with the noble Lord, Lord Lansley, and the noble Baroness, Lady Bull, that there has been a remarkable lack of attention to this document, although it is extraordinarily important. The Prime Minister has offered us no coherent vision of the future relationship. Someone has to look at this to see where we are going. One hundred and forty-one paragraphs of the political declaration cover a very wide range of issues, including data protection; participation in European programmes on science and innovation, culture, youth exchanges and education development; the European Neighbourhood Policy; intellectual property; family law co-operation; transport; energy; fishing; global co-operation on climate change; sustainable development; health and epidemics; foreign policy, security and defence; the UK contribution to joint defence operations; intelligence exchanges; whether we have access to the European Union Satellite Centre; space co-operation, about which it says very little because we have not got very far; cybersecurity; illegal migration, counterterrorism; et cetera. That is all to be negotiated, ideally by December 2020. That is not going to be very easy, but it is at least the intention.

There have been references throughout the debate to our aim of negotiating a Canada-minus as our future relationship. Canada is 4,000 miles away from the European Union, and the European Union is not Canada’s major or dominant trading partner. Britain is much more like Switzerland, so we ought to look at the Swiss relationship with the European Union for the future. Switzerland is after all surrounded entirely by the EU. England is currently surrounded only on three sides by two sea borders and a land border with Ireland and, if and when Scotland joins, it will be surrounded on all sides by an EU border.

There is an uncomfortable dependence for Switzerland on the European Union, with freedom of movement a particularly delicate issue on which the Swiss have had a number of referendums but have still failed to agree on their full relationship with the European Union. There are 140 bilateral agreements between the European Union and Switzerland, negotiated with a good deal of pain and much effort over the years. For the last five years the two sides have been attempting to negotiate a wider framework agreement, which is not yet concluded. If we think we can negotiate a comparable framework agreement in 14 months, we are asking an awful lot and assuming that it is going to be much easier than for Switzerland. The Swiss have particular concerns over issues like pharmaceuticals and scientific collaboration, because they have some extremely good universities, and I am told that the European Union is already being more difficult with the Swiss because it recognises that the concessions that it gives to Switzerland will be concessions that the British will also ask for. So the Swiss sit outside EU negotiations, struggling to modify their impact when they have already been agreed, and then accept that they cannot change them. That is the illusion of sovereignty and the reality of subordination.

I think we also recognise that we are facing a wider crisis of our political and constitutional system. The noble and learned Lord, Lord Judge, hinted at this. Major issues have come up in this debate in the last two years about the relationship between Parliament and government and between government and the law and the courts. We have a Government without a majority and an Opposition without a credible leader, so it is also a crisis of our two-party system. We have an entrenched two-party system in which, if the Government fail, a credible Opposition are supposed to be there to take over, unlike the situation that we have now.

The loss of popular trust in Parliament, the parties and the institutions is something that should concern us all very deeply. We have talked a bit about the crisis of the UK, with Scotland and Ireland potentially leaving. I also feel, as someone who lives in the north of England, that England would be left with its own internal crisis as the manufacturing north would suffer much more from its exclusion from the single market than the financial-services south, and the gaps in terms of regional and individual inequality would widen further.

I read an article two weeks ago that said we should not entirely forget the fate of Argentina, one of the world’s most prosperous and rapidly growing countries in the early 20th century, which fell prey to populism, disintegrated economically and politically and has never recovered. That is an apocalyptic view of where England might end up, but we need to look very carefully at where we are going. The Prime Minister has not told us where we are going, because he does not think like that. He thinks about what we do tomorrow, not the week after.

This is not a good deal, but it is better than no deal. It may be time to reconsider as such. We need to think about resolving not just Brexit but the deep regional and social inequalities of our own union; about our constitutional framework and the weakening of it that we have seen over the last two years; and about the framework of our democracy and what we mean by democracy. We cannot begin to resolve these things without both an election and a confirmatory referendum.

Queen’s Speech

Lord Wallace of Saltaire Excerpts

Wednesday 16th October 2019 Lords Chamber

[Lord Callanan]

My response to the noble Lord is that we are. He will know of the slow decision-making process of the European Union. Most of the new directives and regulations that would be implemented during the implementation period are already being discussed, or indeed have been decided, so we are taking part in discussions on those matters.

[Lord Wallace of Saltaire (LD)]

My Lords, we have not discussed the future political declaration in much detail. There is a very large agenda to be negotiated once, as the Minister said, we have got Brexit done. Do the Government have an estimate of how long that will take? Are they confident that they really can negotiate and agree all those matters and get the treaty through during the implementation period, or are we talking about another two or three years before this is completed?

[Lord Callanan]

It remains our belief that we can get it concluded during the implementation period. We believe that the discussions on all the different areas can proceed in parallel, but of course we are awaiting the implementation of the new European Commission, which has now been delayed. We will wait to see how it wants to structure the negotiations from its point of view but of course, we are getting ahead of ourselves. We do not yet have a deal or an implementation period, but certainly from our point of view preparations in my department are well advanced for the co-ordination and construction of those negotiations.

A number of noble Lords—the noble Baroness, Lady Quin, the noble Lords, Lord Ricketts and Lord Anderson, and the noble Baroness, Lady Crawley, who will always remain in the sun as far as I am concerned—raised what is probably this House’s favourite subject: the second people’s vote. I see that it has now morphed into a confirmatory referendum or confirmatory vote. No doubt the focus group testing of “second people’s vote” did not work too well. As the noble Lord, Lord Grocott, brilliantly pointed out, it is somewhat Orwellian to hold a people’s vote specifically to reverse the original vote of the people. If that does not work, we will no doubt get another name for it from the campaigners next week. However, I shall go no further on that subject other than to say that this Government will not support another referendum, whatever they call it.

On the subject of no deal, as I said—

Brexit: Preparations

Lord Wallace of Saltaire Excerpts

Tuesday 8th October 2019 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for repeating the Statement which, despite what we hear from sources at No. 10, claims,

“the strong desire of this Government to leave the EU with a deal”.

It is now 76 days since Mr Johnson became Prime Minister and 23 days until 31 October, but he has failed to get a deal: a failure that he said, and for which he would share responsibility, would represent “a failure of statecraft”. So, we have no deal, but is that the fault of the Prime Minister and his incompetence? Oh no, it is the fault of those pesky Europeans; it is the fault of the unbending Irish; it is the fault of Mrs Merkel; it is the fault of those pesky parliamentarians; and it is probably the fault of your Lordships’ House. But the truth, as we now know from the ever-helpful Spectator, is that there is no desire for a deal. It is all a ruse.

The Government are spending taxpayers’ money on advertisements to promote the 31 October date and the notion that we will leave on that day even though it would be unlawful without the consent of the House of Commons. The ads and the endless repetition of the date are all to absolve this incompetent Prime Minister of his failure, and it is all about preparing for an election where he can blame everyone but himself for our continued membership. But at what cost? What would be the cost of that much-trailed no deal? The IFS says £150 billion a year for business in administration alone, while the Government themselves are spending £8 billion to soften the blow. Then there are the tariffs to be paid by exporters, consumers and some importers—although not on Argentinian wine or New Zealand honey, which are not very high on the ordinary person’s shopping list. We will see higher food prices for consumers and the ending of pet passports. I am not making this up. It is all in the misnamed document I have in my hand. This is called “readiness”, despite what we hear from Ireland, from farmers, manufacturers, exporters, road hauliers, expats, medics and small businesses—that we are woefully unready. Indeed, it makes Ethelred the Unready seem extraordinarily well prepared.

Tariffs would hit us three weeks on Friday with an immediate impact on availability and prices. UK citizens abroad would lose some of their rights, while traffic congestion near Dover would make Parliament Square look like an open space. Moreover, with no adequacy agreement, any firm without an appropriate contract would lose data flow rights while the European arrest warrant would end. I say again: three weeks on Friday. Small businesses, hit by customs declarations for the first time, will be stymied in their work, and it is clear that the Government, despite this Statement, simply do not want a deal and are playing with people’s livelihoods. As Mr Tusk writes,

“what’s at stake is not winning some stupid … game. At stake is the future of Europe and the UK as well as the security and interests of our people”.

Speaking to the Prime Minister, he says:

“You don’t want a deal … you don’t want an extension”.


That says it all. The Deputy Prime Minister of Ireland agrees with the Tusk statement, which she says,

“reflects the frustration across EU and the enormity of what’s at stake … We remain open to finalize a fair #Brexit deal but need a UK Govt willing to work with EU to get it done”.

We are pleased that the Government have published this document. However, let us be clear: we on this side of the House—I probably speak for the whole House, not just this side—will do everything in our power to ensure that the no-deal nightmare does not come to pass.

I have only two questions for the Minister. First, does he really think that his Government will be thanked for taking the UK out of the European Union in this way? Secondly, does he think that the EU will help us to find a way forward when Leave.EU tweets over a picture of Mrs Merkel today the words:

“We didn’t win two world wars to be pushed around by a kraut”?


Is the Minister as embarrassed by that as I am?

[Lord Wallace of Saltaire (LD)]

My Lords, it is very difficult to know how much of this Statement to believe. It says that the Government still think that there is a chance of no deal. The text from No. 10 from last night—which the Spectator has now published—suggests that people with influence inside No. 10 have clearly entirely given up on the idea of a deal and are moving towards an election, so we have to treat this as the beginning of a series of election statements.

The statement that we will leave with no deal if necessary is a statement that the Government will defy the law. That is also an interesting statement for the Government to make to Parliament at this point. I note that, among other things, last night’s text says:

“To marginalise the Brexit Party, we will have to fight the election on the basis of ‘no more delays, get Brexit done immediately’”.


If that is what the national interest has come down to, we are all in deep trouble. Dominic Cummings appears to text as madly and prolifically as Donald Trump tweets.

There are a number of other fantasies in the text. However, I would like to start by pressing the Minister a little more on the fantasy that he gave us yesterday in suggesting that one could have production with different standards for the domestic and export markets. I am not sure whether the Government have had any discussions with any industrial sectors about having separate production lines. Perhaps they could tell us. We know very well that cross-contamination makes that sort of thing very difficult indeed in the food industry. The pharmaceutical industry depends on global markets, global standards and global research efforts. It will cease production in Britain if we start doing things like that. Non-tariff barriers produced by the British at different standards might also get us into trouble with the World Trade Organization.

If and when we leave the European Union, we will become “an independent trading country” again—as the Statement says—but we will not become an entirely independent economy. We depend very heavily on multinational companies which produce and invest in this country. If they cease doing so, we will all be poorer.

The Statement congratulates the automotive industry on how well prepared it is. What preparations is it making? It is closing plants for periods and reducing plans to build new models in this country. I remember a representative of the automotive sector saying to me in a briefing some weeks ago that it is now impossible to justify new investment in this country. That is the sort of preparation that it is making. This will make us and our children poorer over a longer period.

Another fantasy is that the World Trade Organization will be a major gain for Britain because we will have our own seat; this does not accept the deep crisis within the WTO which the United States has itself created. There is a failure to recognise that between the referendum three years ago and now there has been a downturn in the world economy, a protectionist turn in US policy and a trade conflict between the US and China, which makes the international context in which we manage the British economy much more difficult.

No form of Brexit offers comparable benefits to staying in the EU. That is what, after three years of discussions, the Government have discovered. As a result, the Government are not saying, “Now that we have been through all this, we need to modify our position”. They are saying, “Now that we have been through all this, we need to mitigate the disaster we are committing the country to”. This is a betrayal of Margaret Thatcher’s legacy. She pushed through the European single market as a major exercise in globalisation and deregulation by having common standards in one of the biggest markets in the world. The Government are now retreating to the idea that we will have our own little standards in a much smaller and weaker economy.

There have been all these comments about “vast financial contributions” to the EU budget. As I recall—since we are one of the richer countries and a major contributor—these are said to be £9 billion per year. Well, so far, we have spent £8 billion on the additional costs of leaving, and we have not yet begun to calculate the costs that we will incur from having to replace the shared agencies and facilities to which we have contributed as part of the EU with separate, national facilities. I mentioned yesterday the Joint European Torus in Culham; this is to become a national facility for which, I assume, the British Government will in future pay all the costs rather than a contribution towards shared costs. That is the sort of new cost that we will be developing.

When it comes to Britain in the world, where is British foreign policy? There is no sense of where Britain goes. This is a Vote Leave Government, not a Conservative Government. So much in this Statement seems to be without any foundation whatever. Lastly, it says there will be “damage to democracy” from “dishonouring” the referendum result. After the referendum, our current Prime Minister published an article in the Telegraph saying that there was no question that we had to leave the single market. He has changed his mind. Is it not time the Government changed their mind?

[Lord Callanan]

I thank the noble Baroness and the noble Lord for their comments and questions. I say to my opposite number, the noble Baroness, Lady Hayter, that what I found interesting about her lengthy contribution—she had a number of clever debating points to make—was that she said nothing at all about Labour’s policy on Brexit. Of course, as we all know, Labour is against everything: against a deal, against no deal, against revoking Article 50. One of these days, maybe even in our debates, we may get to discover what the Labour Party is in favour of.

I will correct some of the points that the noble Baroness made. She said that it is unlawful to leave without a deal. That is not correct. Leaving without a deal is the legal—

Brexit: Withdrawal Agreement and Political Declaration

Lord Wallace of Saltaire Excerpts

Monday 7th October 2019 Lords Chamber

[Baroness Smith of Basildon]

My Lords, by way of explanation, I said that the DUP were not represented here. I see that they have now taken their seats, and we look forward to hearing from them.

[Lord Wallace of Saltaire (LD)]

My Lords, I hope that the Minister understands that part of the reason for our demand to see the full text is that many of us neither trust the Government nor are convinced that they understand quite where they are going. In answer to my question last week, the Minister insisted, as he just has again, that the Government are aiming for higher standards than common European standards. Yet, since he gave that any answer, I have seen a number of briefings for the press from Ministers and sources in No. 10 which suggest that we want more flexible standards to be able to open up to a range of things, which suggests lower standards. It says here that we are not prepared to be a “rule-taker”. It also says that we want to renegotiate the political declaration so that we can have our own regulations.

When I was following Margaret Thatcher’s proposals for the single market in the early 1980s—the Minister is probably too young to remember that period—the argument which was made by those around Margaret Thatcher was that we were a rule-taker. We by and large took US regulations and taking part in creating European regulations would give us much more of a handle on questions such as how we coped with the internet, and what is now the whole digital economy, and we would therefore be able to take part in making our own regulations.

There seems to be a fantasy in the Government that we are not going to follow American regulations or European regulations but we will be a wonderful island with our own special regulations in this whole area, which will make it much more difficult to trade and produce services in collaboration with others. Is that the direction we are going in, or are we going back, as some Ministers seem to have suggested at the weekend, to following American regulations instead?

[Lord Callanan]

I thank the noble Lord for his question and particularly for his age compliment, although I am not sure I am that much younger than he is; I accept it none the less.

I said last week, and repeated to the noble Baroness, Lady Smith, that we already have higher standards in virtually all those areas than the EU minimum standards. What standards we have in the future is one of the great opportunities of Brexit. What standards we might like to have is a matter for this House. The great thing about Brexit is that we no longer have to have these things dictated for us by the European Union. This is about taking back control. We can decide these matters for ourselves.

I am not clear why the Opposition think that this is such a bad thing. We can decide whether we have much higher standards, different standards, alternative standards. The opportunity to better regulate new and emerging areas of technology is one of the great opportunities of Brexit when we are no longer attached to the lumbering dinosaur of the EU. We can decide these things in a nimble and flexible way.

In terms of the noble Lord’s general comments about standards, obviously it is the case that if we want to export to the US market, the Chinese market, or the Indian market, we have to follow those standards in those particular areas. For the vast bulk of our trade and commerce which goes on within our own internal economy, we can determine those standards for ourselves.

Brexit: Parliamentary Processes

Lord Wallace of Saltaire Excerpts

Thursday 3rd October 2019 Lords Chamber

[Lord Callanan]

I agree with my noble friend. I think the Benn Act was designed to undermine our negotiating position by people who actually do not want to leave the EU but do not have the courage to admit to the British people that that is what they in fact desire.

[Lord Wallace of Saltaire (LD)]

My Lords, at the beginning of this Session, the Government set out a series of Bills that needed to be passed in order to provide for an orderly Brexit. These included Bills on trade, immigration, fisheries and agriculture, none of which has yet proceeded through this House, completed their progress and become Acts. Do the Government intend that we have a disorderly Brexit without the legislative framework, or are we intending to sit Saturdays and Sundays for the last two weeks in October in order to get the legislative framework in place?

[Lord Callanan]

As I said to the noble Lord before, we are able to give him the reassurance that he needs that we already have all the necessary legislative framework in place that will allow us to leave the European Union on 31 October in an orderly fashion.