European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

Moved by

[Viscount Hailsham]

49: Before Clause 9, insert the following new Clause—
“Parliamentary approval of the outcome of negotiations with the European Union
(1) Without prejudice to any other statutory provision relating to the withdrawal agreement, Her Majesty’s Government may conclude such an agreement only if a draft has been—(a) approved by a resolution of the House of Commons, and(b) subject to the consideration of a motion in the House of Lords.(2) So far as practicable, a Minister of the Crown must make arrangements for the resolution provided for in subsection (1)(a) to be debated and voted on before the European Parliament has debated and voted on the draft withdrawal agreement.(3) Her Majesty’s Government may implement a withdrawal agreement only if Parliament has approved the withdrawal agreement and any transitional measures agreed within or alongside it by an Act of Parliament.(4) Subsection (5) applies in each case that any of the conditions in subsections (6) to (8) is met.(5) Her Majesty’s Government must follow any direction in relation to the negotiations under Article 50(2) of the Treaty on European Union which has been—(a) approved by a resolution of the House of Commons, and(b) subject to the consideration of a motion in the House of Lords.(6) The condition in this subsection is that the House of Commons has not approved the resolution required under subsection (1)(a) by 30 November 2018.(7) The condition in this subsection is that the Act of Parliament required under subsection (3) has not received Royal Assent by 31 January 2019.(8) The condition in this subsection is that no withdrawal agreement has been reached between the United Kingdom and the European Union by 28 February 2019.(9) In this section, “withdrawal agreement” means an agreement (whether or not ratified) between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU and the framework for the United Kingdom’s future relationship with the European Union.”

[Viscount Hailsham (Con)]

My Lords, I am afraid that I am in danger of repeating myself, in the sense that I now rise to move this new clause—which I am glad to say has attracted support from many parts of this House. This amendment is designed to ensure that the future of our country is determined by Parliament and not by Ministers. The Prime Minister and other senior Ministers have promised Parliament a meaningful vote; and in a parliamentary system of government, parliamentarians, and in particular Members of the House of Commons, have a right and a duty to determine what is meant by “a meaningful vote”. When the negotiations are concluded, both country and Parliament will be asked to consider the outcome, terms or no terms. The question that will then arise is what should be the role of Parliament, and in particular that of the House of Commons. My view is as follows.

If terms have been agreed, the choices available to Parliament, and in particular to the House of Commons, should obviously be to accept or to reject those terms. If the decision is to reject the terms, Parliament should have the right to suggest further negotiations—I should be rather chary about that, but it should have that right; or to determine that we leave the European Union without terms—that is, to crash out; or to determine that we stay in the European Union on the existing terms. In the event that no terms have been agreed, the same choices should be available to Parliament: that is, to accept that the country should leave the European Union on no terms; or to determine that the country should stay in the European Union on the existing terms; or to request further negotiations, although I am chary about that. In other words, whatever the outcome, terms or no terms, this country’s future should be determined by Parliament, ultimately by the House of Commons, and not by Ministers. In a parliamentary democracy, that is what ought to be meant by “a meaningful vote”.

So, we need to ask ourselves: what is on offer from the Government? Those who were present in Committee will have heard my noble friend Lord Callanan set out the Government’s position. He did so frequently and with clarity and we are indebted to him. On 14 March, my noble friend Lord Patten of Barnes—I am glad to see him in his place—asked this direct question:

“Perhaps we are not being as intelligent as we should be. In the phrase ‘a meaningful vote’, what does the word ‘meaningful’ mean?”


Noble Lords may think that that was a very sensible question. He got rather a curious and surprising answer. The Minister said:

“We have never used the term ‘a meaningful vote’”.—[Official Report, 14/3/2018; col. 1650.]


He was, of course, mistaken. The phrase “a meaningful vote” has been used by the Prime Minister, Mr Davis and other senior Ministers on many occasions. I am indebted to the House of Lords Library for examples, which I would happily share with my noble friend should he require them. However, given that my noble friend has, throughout these debates, always adhered very strictly to the script in his ministerial folder—he is not a Minister who goes off-piste—his response troubles me. The Government must not be allowed to dilute or in any way move away from previously given commitments, however meagre they may be.

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[Viscount Hailsham]

My Lords, I have a very strong sense that this House wants to move to an early decision. I confine myself, therefore, to making one substantive point. It is to my noble friend Lord Howard, because what he said underpinned many of the arguments articulated by other noble Lords. He said, “The House of Commons will have its say, the House of Commons will have its way”. It underpins his argument, but it is not government policy—that is the point. The Government’s policy, as was brought out by the noble Lord, Lord Butler, is “this agreement or no agreement”. That it is not letting Parliament have its say. The truth is, if we want Parliament to have a truly meaningful vote, we have to insist on it. That is what this new clause is about, and I wish to test the opinion of this House.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I serve as the legal assessor to regulatory panels and in the course of that, we have to address the meaning of the word “necessary”. The panels that I work with, as a general proposition, have no difficulty in identifying the meaning of that word. It is also used as useful protection for people because it is a higher threshold than “appropriate”, “desirable” or a range of other words that are used. I say to the noble Baroness that in my experience as a regulator, “necessary” does not constitute a difficulty along the lines that she has suggested.

[Baroness Falkner of Margravine]

I completely accept the long experience that the noble Viscount, Lord Hailsham, has. I referred specifically to time in case there is a financial crisis. That is when regulators have to resolve institutions fairly quickly in co-operation with one another. That is a danger that we face at this point—10 years into the last one.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

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

[Baroness Hayter of Kentish Town]

I think that that is what the amendments seek to achieve and, as this House has said again and again, the whole idea was meant to be to bring back decision-making to Parliament.

[Viscount Hailsham (Con)]

The noble Lord, Lord Adonis, is right about this, because the noble Baroness’s amendment would give power to Ministers by regulation to extend or vary the exit date. What the noble Lord, Lord Adonis, is saying, and what I must say I agree with, is that the power should be in the hands of Parliament and that Back Benchers should have the opportunity to trigger the process.

[Baroness Hayter of Kentish Town]

There is a series of amendments in the group, and I hope that when we get to Report we will have one that does exactly what is clearly felt will be needed. The importance of our amendment is to get rid of this absolute fixed date that is there at the moment—and not in the original Bill. It was introduced in one of the few amendments made in the Commons, not for the national interest but for a slightly more partisan reason.

Article 50 provides:

“The Treaties shall cease to apply … from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification”—


unless, of course, the 27 agree to extend the period. Thus the UK would not automatically leave after two years if, for example, the final deal had not yet come into force.

It could be that that itself sets a later date; it could be because the European Parliament had vetoed the deal in January. What would happen in that eventuality? I think it unlikely, but the Government always tell us that we must be prepared for any eventuality, and we should be prepared for that, given the red lines that the European Parliament has been setting down. Guy Verhofstadt told Andrew Marr on television that it meant that, if it did veto the deal, we would leave with no deal—in other words, as we have all said a number of times, trading on WTO terms, with no transition and no safeguards for citizens.

I doubt very much that, should the European Parliament decide that it did not want to agree with the deal, the Governments of the 27, let alone the Government of the 28th, would simply settle for that and say, “We give in—come out on WTO terms, with no concern for EU citizens”. My guess is that there would be rapid and rather complicated negotiations, which is particularly important given that in January next year we know jolly well that when it comes to our customs at Dover, our procedures for registering EU nationals, new VAT forms, agreements on aviation and the export of live animals, and checks on foodstuffs and all manufactured goods, none will be ready by the time of March next year—let alone the situation in Northern Ireland being resolved.

So undoubtedly at that stage, if the European Parliament did vote it down, we would definitely need a period of breathing and talk to get things back on track. If just another week or two would make a difference, surely that should be possible without having to live with the date written into the Act. What could also happen, even without the European Parliament, is that discussions could be going on and agreement could be very close—just days away—and we surely would not want the Act to stop those discussions taking place. Setting that date in stone must be unhelpful to say the least.

The Government think that they can agree the substance of our future partnership with the EU before October this year, but the report from the other House from the exit committee said that,

“it is difficult to see how it will be possible to negotiate a full, bespoke trade and market access agreement, along with … other agreements, including on foreign affairs and defence”,

by October. It suggested that,

“the Government should seek a limited extension to the Article 50 time to ensure that a Political Declaration on the Future Partnership that is sufficiently detailed and comprehensive can be concluded”,

before we enter the transition period. The same report states:

“If a 21-month transition … period is insufficient time to conclude and ratify the treaties/agreements that will establish the Future Partnership or to implement the … technical and administrative measures along with any … infrastructure at the UK border, the only prudent action would be for the Government to seek a limited prolongation to avoid unnecessary disruption”,


and that the withdrawal agreement should therefore,

“allow for the extension of the transition … period … with the approval of Parliament”.

We can do that only if the date is in our hands and not fixed in the Bill.

The noble Lord, Lord Kerr, who is not in his place, has said that saddling yourself with deadlines is crazy. Had he been here, I would have said that it was not as crazy as writing Article 50 itself—but, as he is not here, I clearly would not say that. The date was put in the Bill to satisfy some Back Benchers who had no involvement with these detailed talks or with the task of implementing the final deal. So let us get it out of the Bill now, untie the Government’s hands and give them a better chance of negotiating a satisfactory way of extraditing ourselves from what is otherwise, I fear, a looming nightmare. I beg to move.

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[Lord Adonis]

My noble friend makes very good points, which will be a subject for discussion when we see the proposed withdrawal treaty. However, this is all the more reason why Parliament should not commit itself now to a date in advance of knowing the basis on which we are going to withdraw. The arguments for taking the date out of the Bill are compelling. It is not sufficient that only a Minister has the power to change the date. It is crucial for Parliament itself to be in charge of setting the date, once it has agreed the terms of departure.

I am always an optimist in these matters. The noble Lord, Lord Hannay, did the noble Baroness on the Front Bench a great disservice when he said that he knew in advance what she was going to say. We know that the noble Baroness is highly emollient and listens to debates in the House. She is not her noble friend Lord Callanan, who just reads from the script and is totally unresponsive to the mood of the House. We have great confidence that the noble Baroness will say that she has listened to the compelling arguments which have been put to her, particularly from her ducal colleague; that she is going to depart from the words in her script; that Her Majesty’s Government will consider this matter on the basis of the overwhelming weight of arguments which have been put in this Committee and that she will be delighted to accept the amendments on the Order Paper this afternoon.

[Viscount Hailsham]

My Lords, I will speak briefly to Amendments 344 and 346 in my name. First, however, I find overwhelming the arguments in favour of Amendment 334 which have just been articulated by the noble Lord, Lord Adonis, my noble friend and other noble Lords. It is a grave mistake to put the exact date of departure into statute. I note that the noble Lord, Lord Hannay, rightly said that that was not the Government’s original position. Amendment 346 is brought forward with a rather different motive and is broader in its purpose. Not only do I want to give Parliament the decisive say on the exit date; I want to give Back-Benchers the decisive ability to trigger that process. I simply do not trust the Front Benches on this matter. If Back-Benchers in the House of Commons want to stop a hard Brexit; if they want to stop Brexit; if they want to stay in the European Union—which is my position—I want to enable them to put down a resolution which requires a debate on precisely those terms. That is why Amendment 346 expresses, perhaps clumsily, the idea that at least 150 Back-Benchers could table a Motion requiring the holding of a debate on exit. My purpose is simply to enable Parliament to say no to Brexit if that is its wish. By giving this decision on the date to Parliament, we are strengthening the arsenal available to parliamentarians to stop this unhappy process coming to the final end of Brexit. I believe that is a national disaster and Parliament should be able to stop it. It is in that sense that I speak to the amendments in my name.

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[Lord Cormack]

Very simply, I am talking about the fact that the Bill, as it is before the Committee, has a specific date in it. The purpose of these amendments—tabled by my noble friend the Duke of Wellington and others—has been to give the flexibility that the Bill does not allow at the moment. I am surprised if my noble friend cannot see that. I am not arguing against the prudent and excellent speech made by my noble friend Lord Tugendhat. He made the point as effectively as anybody could. Therefore, let us try to unite on Report around an amendment that will give the additional flexibility that changes in the other place have not given.

[Viscount Hailsham]

Does my noble friend assent to the proposition that Back-Benchers in the House of Commons should be able to trigger the process, as well as Ministers?

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Monday 19th March 2018 Lords Chamber

[Lord Butler of Brockwell]

My Lords, I had expected that intervention. If that is the EU’s tactic, it has plenty of ways of doing it, and plenty of motive for doing it, other than just producing a bad agreement.

As others have said, it is quite clear that, since the people voted in a national referendum to leave the European Union, that decision could be reversed only by the people. That would require either a further referendum or a general election in which the people had the opportunity to elect a Government with an explicitly different mandate. In those circumstances, I suspect the Government themselves would prefer a further referendum.

Ever since the referendum, I have argued that the British people are entitled to a further say when the terms of the UK’s departure are known. I still hold that view, but that is not the case which I am arguing today. The purpose of this amendment is simply to ensure that a further referendum remains an option if the negotiations do not turn out as well as the Government hope.

To say that Parliament’s so-called “meaningful vote” can be a choice only between a bad agreement and no agreement would be an outrage. I shall listen carefully to what the Minister says in his reply, but I am afraid that the Government intend that the meaningful vote will be simply a binary choice between the outcome of the negotiations and no agreement. In that case, I hope that the House will support an amendment on the lines of that proposed by the noble Lord, Lord Newby—if not this evening, then on Report.

[Viscount Hailsham (Con)]

My Lords, I had the opportunity of speaking at some length last Wednesday to my Amendments 216 and 217, when I explained my thinking fairly fully, so I shall be brief today. I shall say simply that I wholly support what the noble Lords, Lord Butler, Lord Newby, Lord Wigley and Lord Foulkes, have said about this matter. It seems of cardinal importance that we should give to the British people a chance of expressing a final view as to whether we leave. They must have the choice of staying in the European Union if that is their wish. Personally, I am inclined to think that Parliament could make that decision of its own motion, but I recognise that, once a referendum has been held, it might decide that it had no choice but to test its own opinion by recourse to another referendum, which would be conducted with the full situation apparent to the entire electorate.

I fear, as does the noble Lord, Lord Butler, that the Government have it in mind to put to the British Parliament a choice of either the deal or no deal. I would find that profoundly offensive. I could not support such a situation. I doubt I could support a Government who made that their platform. It has to be right for Parliament and probably the electorate to have a choice between remaining in the European Union or accepting the terms on offer. It has to be a genuine choice, otherwise the concept of a meaningful vote is without meaning.

[Lord Adonis]

Does the noble Viscount agree that it does not matter what the Government say, it is up to the House of Commons to decide what the choice should be?

[Viscount Hailsham]

The noble Lord is quite right and my noble friend Lord Garel-Jones was indicating this point. When my noble friend Lord Callanan constantly says that the people have spoken and we are leaving, he is wrong because ultimately it is Parliament that will decide whether we leave or not, and maybe the British people by an election. I do hope that he will stop saying, as he has been saying rather too often to my way of thinking, that the referendum is conclusive of the matter and we are leaving, whatever. That is not consistent with my understanding of the British constitution, our history or our purpose. We have a right, as Parliament, to demand that we have the decisive say, and if we think it is right, there should be another referendum on the terms then identified.

[Lord Forsyth of Drumlean]

I know the affection that my noble friend has for Parliament. Could he just remind the House of the size of the majorities against having a second referendum in both Houses of Parliament?

[Viscount Hailsham]

I think my noble friend, for whom I have the greatest respect, tempts me, and I am going to be tempted. I do not believe that there is a parliamentary majority for Brexit, either in this House or in that House. I certainly do not think that there is a parliamentary majority for a hard Brexit. I think that if Members in that place were to consult their consciences, they would vote to remain within the European Union. That is what we need to give them the opportunity to do.

[Lord Robathan (Con)]

I know that my noble friend does not think much of referendums, and neither do I. I think that referendums are a shocking idea. I hear around this House a lot of people who frightfully disapprove of the last referendum we had because it came up with a rotten result, as far as they are concerned. So will my noble friend please explain to me, because he is an extremely clever man, the logic for why on earth, having not liked the last referendum, we would want another one?

[Lord Garel-Jones]

Parliament is supreme.

[Viscount Hailsham]

My noble friend Lord Garel-Jones says that Parliament is supreme and he is entirely right. My noble friend Lord Robathan was here on Wednesday when I gave him and this Committee my answer to that. I do not think that the last referendum was an authority to leave on any terms or no terms. I think that it was an instruction to the Government to negotiate the best terms that could be negotiated, leaving open the question: who then decides whether the terms or the absence of terms are acceptable? I have always believed that the final decision rests with Parliament and, if Parliament so requires, the British electorate.

[Lord Bilimoria (CB)]

My Lords, as a country we have only had referenda a few times in our history. This is the first time, let us remember, that the referendum result has not reflected the will of Parliament. Looking back to what the will of Parliament was two years ago, before the referendum, let us remind ourselves that about two-thirds of the House of Commons and well over 75% of this House wanted to remain. Since the referendum of 23 June 2016 we have been told to respect the will of the people. We have been told by the Government that they are implementing the will of the people; they are under the orders of the people; it is undemocratic if we even challenge this. The whole nation is now under an impression that this Brexit juggernaut is going, they have to get onto it and there is no turning back. But let us remember that from 20 February, when the referendum was announced, until 23 June represented four months to make a decision about 44 years.

It is so complex. Many noble Lords were in this House when, just before the referendum, the EU Committee debated one of its reports, and it was said that if only people realised how complex this was going to be and how impossible, they would never, ever want to leave. I have always said that I am a Eurosceptic in many ways; I am against a lot of the things about the European Union. It is nowhere near perfect—the euro being a great example—but on balance I think that it is absolute folly to implement this wretched referendum. The Brexit emperor has no clothes. People have changed their minds, people are changing their minds and people will change their minds in the run-up to October, let alone in the run-up to 29 March next year. People have to be given the opportunity to change their minds. As Keynes said, “If the facts change, don’t you change your mind?” Of course you can. Even David Davis said:

“If a democracy cannot change its mind, it ceases to be a democracy”.


What is wrong with the referendum, and what is so undemocratic about it—the noble Lord, Lord Patten, is so right—is that in a normal vote, if you win with 50.1%, you have won and that is it, but in five years’ time, people can change their minds if they are unhappy, if they have been lied to, if people have not performed. Here, there is no such chance for people to change their minds. What is more, we have had two years, as the noble Lord, Lord Foulkes, said—this is why this amendment is so crucial—during which people who were 16 and 17 year-olds would now be old enough to vote. Every time I speak at universities and schools, and I do so regularly, I ask them, “If you were given a choice, would you wish to remain or leave?” I am not exaggerating; almost 100% of the hands go up saying they want to remain. In fact, I get applauded a lot of the time and people say, “Really? Do we have a chance?”

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[Viscount Hailsham]

My noble friend really must face the possibility that Parliament will take a different view, in which case the Government will do what Parliament says—or we are not in a parliamentary democracy.

[Viscount Ridley]

I was under the impression that that is exactly what we are debating right here and now, and it is what the other place debated fully—and came to a very different decision from the one that we might come to here.

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[Lord Callanan]

Of course I do not disagree with the ruling of the Supreme Court, which is why we will have another vote later in the year and will bring in legislation to implement the result of our negotiation.

Noble Lords will of course recall that we had a debate on Report of that Bill on the options for a second referendum, an amendment that was defeated by 336 votes to 131—a telling result, perhaps, but not as telling as that of last year’s general election, where the parties committed to respecting the result of the referendum received more than 80% of the vote. Petitions have been brought to the other place for debate on this issue and have failed to garner the support of the House.

I say this: we were given a national mandate and Members must comply with the instructions for exit from the EU. I am sorry if noble Lords are shocked by those words, but they are not mine, they are the words of the former leader of the Liberal Democrats, Sir Nick Clegg. Perhaps for the first time in my life, I agree with Nick.

We hold not only that this Bill is not the vehicle for a second referendum but that the European Union Act 2011, put in place by the coalition Government to ensure that referendum would be held regarding future transfers of competence to the EU, is also not a mechanism that can be used to secure such a referendum by stealth. I know that we shall return to this point on another day.

This debate and the issue surrounding a second referendum is about more than the decision to leave the EU; it is about whether the public can trust us politicians. The British people can trust this Government to honour the referendum result. To do otherwise would undermine the decision of the British people, with worrying implications for the perceived legitimacy of our institutions.

[Viscount Hailsham]

Will my noble friend address the question put to him by the noble Lord, Lord Butler? Will the meaningful vote be such as to enable Parliament to vote to stay in the European Union if that is what Parliament wants?

[Lord Callanan]

I covered this point earlier. Parliament has passed the notification of withdrawal Act, to give our notice under Article 50 to withdraw from the European Union. That is the process that we are following; that is the process that was authorised by Parliament.

[Lord Callanan]

We have said that once we have negotiated the best deal available, we will bring it back to this Parliament and Parliament will vote on whether it wishes to accept that deal or not.

[Viscount Hailsham]

Can Parliament vote to stay in the European Union?

[Lord Callanan]

No, Parliament authorised us to leave the European Union under the notification of withdrawal Act. We effectively gave two years’ notice under the Article 50 process.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

Given the disproportionate impact of leaving the EU on a no deal basis or on terms that are unacceptably bad for manufacturing, agriculture and all the services, will the Minister also confirm that the devolved legislatures will be allowed to scrutinise, comment on and vote on any final deal put to Parliament? If Parliament is not to be allowed a meaningful vote along the lines that I have outlined, that only increases the pressure for the final package to be referred back to the people for their endorsement or, indeed, their rejection.

[Viscount Hailsham (Con)]

My Lords, I shall speak to Amendments 216 and 217 in my name. I will come to the detail in a moment, but for present purposes suffice it to say that these amendments, individually and collectively, would give to Parliament—here I acknowledge the primacy of the House of Commons—a decisive and conclusive say over the outcome of the Brexit negotiations. It is for Parliament, not the Government, to determine whether we leave the European Union and, if so, on what terms. If Parliament thinks it appropriate that that decision should be tested by a second referendum that would be wholly appropriate. These conclusions are wholly in accord with our constitution and history, and are, in my view, quite unchallengeable.

I acknowledge that the amendments might be clumsily drafted; I am no parliamentary draftsman. So I say to your Lordships that if others on Report draft different positions that are more happily phrased but achieve the same purpose, I shall be pleased to rally behind them.

My purpose now is to explain in greater detail the nature of these amendments and the reasons behind them. I turn to the text of the two amendments. They are inevitably cast in the statutory language and I do not want to test your Lordships’ patience by going through each clause. I hope that your Lordships will forgive me if I summarise them. My intention is that Parliament shall have the decisive say over the outcome of the negotiations. In that determination, the House of Commons must have primacy. Its decisions must be conclusive. This House does not have the authority to reject Brexit—only the Commons can do that—but we can encourage and facilitate that process. That is what these amendments enable.

Taken separately or collectively, the amendments enable Parliament to approve or reject Brexit whether or not terms have been agreed. They enable Parliament to require the withdrawal of the Article 50 notification and the UK to remain within the European Union, which is indeed my preferred outcome. If Parliament thinks it appropriate, these amendments provide for a holding of a referendum either to test public opinion or to ratify a parliamentary decision. That is wholly correct. Most importantly, the amendments enshrine and protect the primacy of the House of Commons. Without going into detail, although I happily would, the method is set out in subsections (7) and (8) of Amendment 216 and subsections (5) and (6) of Amendment 217. These provisions are based on the Parliament Acts, suitably modified to deal with resolutions.

I will explain the differences between Amendments 216 and 217. Both are designed to ensure full parliamentary control over the outcome of these negotiations. Amendment 216 is simple and is based on a cross-party amendment which was tabled during the European Union (Notification of withdrawal) Bill. Its basic attraction is that it has achieved all-party endorsement. Amendment 217 is a little more complex. It is more explicit in its provisions for the withdrawal of the Article 50 notification: it enables the holding of a second referendum and deals more fully with what should be done in the event of no deal. However, in substance these amendments are designed to achieve the same result: namely that these decisions are to be taken by Parliament, primarily the House of Commons, and not by the Government.

Let me briefly explain the fundamental justification for these amendments. I believe that Brexit is the single most disastrous peacetime decision that we have taken since at least the end of the 19th century when we failed to offer effective home rule to southern Ireland. Indeed, I am inclined to think that Brexit is even graver than that. I do not think that the referendum of 2016 was authority for Britain to leave the European Union, whatever the terms or in the absence of terms. The electorate neither could nor did know what the outcome of the negotiations would be. In my view, the proper interpretation of the referendum is that it was an instruction to the Government to negotiate the best exit terms that could be achieved. However, that leaves open the fundamental question of who will determine whether the terms, or the absence of terms, are an acceptable basis for leaving the European Union. In my view, the only proper answer to that question is that it is for Parliament to make that decision, and, if Parliament thinks it appropriate, the decision should be tested or ratified by a decision of the electorate expressed in a second referendum.

In most political careers, and certainly my own, party and national interests are not seen to be dramatically divergent. Occasionally, they are. The debate in 1940 which led to the fall of Chamberlain is perhaps the most dramatic of recent examples. Going back in history, the decision of Sir Robert Peel in 1846 to repeal the corn laws was another. I happen to believe that we now face another such moment. None of us should put party interest before our assessment of what is right for our country. Our decisions may lead to the fragmentation of existing party structures—I hope not—but our duty is to put our country first. Whatever the cost to our respective parties, we must give Parliament the decisive say on the outcome of these negotiations. That is the purpose of my two amendments and I commend them to this Committee.

[Lord Patten of Barnes (Con)]

This debate should be what I think is called a “no-brainer” for anybody who believes in parliamentary sovereignty. I do not want to add to what has already been said on the subject. I find myself in the curious position, for the first time in my life, of beginning a speech by quoting the Prime Minister of Luxembourg. As the noble Lord, Lord Wallace, pointed out, his description of the—in many respects admirable—Mansion House speech was spot on: here we are, going down this flower-strewn path, from a position where we were members of the European Union with loads of opt-outs to one where we want to be outside the European Union with as many opt-ins as you can get on the back of a lorry. It is called a “bespoke” deal. I do not have many bespoke suits—most of mine are off the peg and on to the floor—and I think that it is more an “off the peg and on to the floor” deal.

However, it was after the Mansion House speech that the most significant question that anyone asked the Prime Minister was raised. After questions from all the “trusties”, a German journalist got up and asked the Prime Minister: “Is it all worth it?” The Prime Minister, perhaps excessively honestly, did not reply directly but just pointed out that we had had a referendum which had to be honoured. I think that some others, including some of her supporters, would have put the point rather differently. They would have said that it is of course worth it because—to use a phrase which has occurred again and again in this debate—we are going to take back control. I think that most of them would at least in principle have conceded that taking back control means this Parliament—the House of Commons and the House of Lords—having control.

I have been struck as we have sat through these debates by the elephant in the room: the person who in many respects is more responsible for us being here and having this debate than anybody else, the regularly occasional leader of the United Kingdom Independence Party, Mr Farage. When Mr Farage talks about taking back control and when some of our tabloid newspapers talk about it, they do not mean Parliament having that control—they mean them; they mean a populist way of running this country. I spent some time this morning looking at Dicey—I have not done that since I was an undergraduate. I looked too at what I think is the best book on the rule of law, by that great jurist and great man, Tom Bingham—I recommend it to noble Lords. I read again what he says about parliamentary sovereignty—the keystone of our constitution. When people talk about taking back control, what they should mean is Parliament having that control. When they talk about a “meaningful vote”, they should not mean a vote which does whatever they want. A meaningful vote does not mean that it cannot make any difference to the whole process of Brexit, which was more or less said the other day by the Secretary of State, David Davis —who had said that there would be a meaningful vote.

I hope that it is not unparliamentary for me to make this comparison, but the Secretary of State increasingly reminds me of a character in a PG Woodhouse novel, of whom it is said, “He’s like one of those people in a Tolstoy novel, living in those dreary birch woods, who’s just chopped up his wife, thrown the baby down the well, goes to the cupboard, opens the cupboard and finds that there’s no vodka in the bottle”. That is the position in which our negotiators are increasingly finding themselves.

On the constitution, the Secretary of State seemed to be absolutely clear: we must have a meaningful vote, but you cannot actually change what happens. It is important for this House to give an absolutely clear message that parliamentary sovereignty in our system is what happens in this House and, above all, in the House of Commons—I agree with what my noble friend Lord Hailsham said on this. This is an occasion when a lot of us will have to make speeches and say and do things which we never imagined we would have to in our political careers. I hope more people in future will take the advice of my noble friend Lord Hailsham and follow their conscience on this issue and assert the principle of parliamentary sovereignty.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

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

[Baroness Randerson (LD)]

My Lords, this Bill gives UK Ministers powers to make statutory instruments that would include the power to amend the founding Acts of devolution without requiring the consent of the Welsh Assembly, the Northern Ireland Assembly or the Scottish Parliament. These powers could be used in relation to policy areas, as noble Lords have said, that are the responsibility already of Welsh Ministers, Northern Ireland Ministers and Scottish Ministers. The assumption is that the UK Parliament would legislate to alter their powers. Obviously, there may be times when this is pragmatically acceptable, but what is not acceptable or reasonable is that, under the provision as drafted, the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly are not required to give their consent.

I wish to speak simply and briefly, referring specifically to my experience as a Wales Office Minister, as a Member of the Welsh Assembly for 12 years, as a Minister in Wales and as a Minister for Northern Ireland in this House. It is safe to say that I have seen it from both ends of the telescope. It has been unthinkable from the start of devolution that UK Ministers would progress in these circumstances without the consent of the devolved Assemblies and Parliament. It has been an early-established principle of devolution that that did not happen. There has on occasion been sabre-rattling but it has not happened because that principle was established.

I am pleased to see the amendments of my noble friend Lady Suttie in relation to Northern Ireland because we are in danger of behaving as if the phase of devolution in Northern Ireland has passed. It is important that the Bill caters for the resumption of devolution in Northern Ireland.

I am pleased to hear from the Minister that the Government are planning changes. However, I know that he has too much respect for devolution to be happy with the situation in which he finds himself today. It is a muddle, a mess, and almost provocative. I certainly would not for one second lay this at the Minister’s door, but it is almost provocative to leave it to the last minute so that, effectively, the opportunity for government amendments in Committee has been lost. I am sad that we are in this situation because it is becoming increasingly negative, when we could go forward in a positive manner. I have tremendous respect for the Minister, his experience and his belief in devolution; I hope his replies will reassure us.

[Viscount Hailsham (Con)]

My Lords, my intervention will be extremely brief. I was entirely persuaded by what the noble and learned Lord, Lord Hope, said. To allow the Westminster Parliament to interfere with the constitutional settlements already agreed without the consent of those constitutional Parliaments or Assemblies is a recipe for disaster. It will stir up nationalist opinion in a way that we would be very well advised to avoid.

The only other point I will make is that the mechanisms for making these changes are unamendable. The Scots Nats in the House of Commons would be active in arguing that it was profoundly wrong to have a regulation before the House—if it was ever before the House, and that is extremely questionable, as we know well— which they could not amend. I can think of few things more calculated to fracture consent and fragment the union.

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[Lord Campbell-Savours (Lab)]

I have not spoken on this Bill at all yet. I have made a point of not speaking because I understand the pressure on the Government, but I want to raise one issue—trusted trader status. The Government have told us that they intend to establish such a system on the border of Northern Ireland and southern Ireland. We are told that an exemption will apply to small and medium-sized enterprises involved in cross-border trade. The Government say that it is possible to manage the allegation that there will be substantial fraud under such a system. First, where can we find a definition of what constitutes a small or medium-sized enterprise? It is very important that we know that in advance. Secondly, do we know what percentage of trade will fall under that description? Thirdly, when they talk about “managing” a system, what kind of management arrangements do they intend to set in place to ensure that fraud does not take place? Finally, what will happen when it comes to customs entries for those firms that are not covered by trusted trader status? Will the clearance and entry arrangements for their goods going over actually be on the border posts? I presume that if some businesses are exempt then there must be some actual control on the border itself. These issues need to be answered at a very early stage in the procedure. I have truncated much of what I wanted to say, but I want to get this on the record this evening.

[Viscount Hailsham]

My intervention at this stage will be extraordinarily brief. What I say about Amendment 104 also applies to Amendments 105 and 106, which are in the two subsequent groups. There is a great deal of merit in requiring these reports, but there is no reason at all why they should be linked to the initiation of the regulations: that is slightly misconceived. The noble Lords, and my noble friend, who put their names to the amendments are lacking ambition. They should require these reports to be published, in any event, before Brexit day. As the Committee knows, later on in this debate we will come to the issue of parliamentary control. Parliament can only exercise full control if it is in possession of facts, and the facts will be furnished by these reports. Those noble Lords, and my noble friend, are right, thus far, in linking it to the institution of regulations, but they should be ambitious and, on Report, require these reports before Brexit day. If my noble friend does that she will find me with her.

[Baroness Altmann (Con)]

My Lords, given transport’s essential role in supporting the UK economy, transport issues should be given high priority by the Government in this Bill and other legislation relating to Brexit. It does not seem to have had that level of importance attached to it. Amendment 104 requires that no regulations should be laid that would amend UK-EU border transport procedures unless Ministers can demonstrate that the new procedures will not increase delays to freight transport. I appreciate the sentiments of my noble friend Lord Hailsham. I will take his comments under advisement on Report because, as he said, this is such an important issue.

The time sensitivity in modern logistics and UK supply chains means that retaining a seamless supply-chain process is of significant economic importance. Customs clearance, as well as passenger entry mechanisms to the UK from the EU, including on the island of Ireland, should be as seamless as possible. If the UK leaves the EU, the current system whereby all trucks can operate through the EU on the basis of a one-page document, and without requiring specific permits, may well not continue. UK-based road haulage businesses have benefited considerably from the EU principles of free movement, which has meant that UK lorries and their drivers can cross borders and operate within other parts of the EU. The Government’s own statistics suggest that 85% of the lorries operating between Britain and the other 27 EU countries are owned by businesses in the other EU 27 countries rather than the UK. In order for these international commercial arrangements to continue if we leave the EU, specific arrangements will be required that have not yet been negotiated. As far as I am aware, this cannot be achieved through our domestic legal system. It is a separate issue from the customs union and depends on access in some form to the single market. If we leave the EU without proper agreements in place or if we fail to maintain full regulatory alignment, road haulage, especially from the UK and Northern Ireland to Ireland, will face barriers. This does not fit with the aim of frictionless trade and our commitments under the Good Friday agreement, notwithstanding the comments of my noble friend Lord Robathan.

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Moved by

[Viscount Hailsham]

109: Clause 7, page 6, line 27, at end insert “or which have effect after the end of the period of two years beginning with exit day”

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[Viscount Hailsham]

My Lords, I shall speak briefly to the three amendments in my name, Amendments 109, 134 and 188. These are intended as sunset clauses but, as I do not want them to be sunrise clauses, I intend to be extraordinarily brief.

Those of your Lordships who have been in Committee during debates on Clauses 7 to 9 will know that I am very unhappy about the process those clauses attract. For example, the powers within those clauses are very widely drawn, the scope is considerable, the regulations are made by secondary legislation with very limited scrutiny, both parliamentary and ministerial, and they are triggered by a test—the test of appropriateness—which I regard as wholly unsatisfactory. For all those reasons, my view is that the regulations made under the regulation-making powers should die two years after Brexit and should, if necessary, be replaced by primary legislation. That is my suggestion to the Committee, and I hope it commends itself to your Lordships. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 111, 137 and 192 in this group and share the unhappiness that has just been described. Mine is a narrow but, I think, important point.

The thrust of most of the amendments in the group —not the noble Viscount’s—is about consultation and transparency. You do not have to spend long working in Parliament to realise that scrutiny very much depends on the input of stakeholders—I hate the term but I cannot think of a better one at this time of night. They assist us to understand how things work in practice, both with technicalities and wider issues. That is not to say that I do not have great admiration for parliamentary counsel and the lawyers working in the departments, who are most concerned with statutory instruments, but my amendments would require consultation on the regulations provided for by Clauses 7 to 9. This should all be a co-operative venture, with stakeholders contributing at an early stage, not least for the reason that the regulations are statutory instruments and not open to amendment, so you have to get it right from the very start.

I was a member for some time of the Secondary Legislation Scrutiny Committee, which received a lot of very valuable representations—lobbying, if you like. I suspect we will not hear comments in support of Amendment 228 in the name of the noble Lord, Lord Adonis, about the Cabinet Office code, but I support the application of the code to the regulations. We may well be told that of course the code will apply. I have to say that in my time on the committee, we undertook quite a lot of work on the application of the code in practice and were quite critical of the responses we received from the Cabinet Office. One of our criticisms was that when consultation was undertaken—which it was not always—on the statutory instruments we were considering, the Government did not publish the responses to the consultation before they published the statutory instrument, so the work was not as helpful as it should have been.

Other amendments in this group are more detailed. Mine is not very elegant. I am not proprietorial about it but I wanted to raise the subject because some provision is necessary and, if I may say so, appropriate. It is a step that is very easy to miss out and I hope we will not be told that all the regulations in question are simply about technicalities and that stakeholders would have nothing to add to the exercise. Practitioners in almost every area may see what is workable in proposals being put forward, as well as substantive points.

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[Baroness Goldie]

People are bellowing “End!” in my right ear and I know which side my bread is buttered on.

I have spoken at length but I hope I have addressed noble Lords’ concerns. I urge the noble Viscount to withdraw his amendment.

[Viscount Hailsham]

My Lords, this group of amendments has enabled the Committee to identify matters of considerable importance. I think that the Committee will say to my noble friend that she has tried to be helpful. We do not always agree with her but we are grateful to her for the way in which she has responded. Important issues have been raised with regard to statutory instruments and consultation with stakeholders. These matters will be addressed later on in future sessions of this Committee. The hour is late and, with the consent of the House, I would like to withdraw my amendment.

Amendment 109 withdrawn.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

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

[Viscount Hailsham (Con)]

Will the noble Lord help this Committee as to the distinction in law between a fee and a charge? At the moment, I am rather puzzled.

[Lord Turnbull]

I am about to get to that. There are other fees and charges which, as a matter of policy, raise more than enough to cover costs and these should be treated as taxes. I think that in the national accounts, even if the words “fee” or “charge” or “levy” are used, statisticians look at the facts of the case. If there is this surplus generated beyond the simple covering of costs, then it would be classified as a tax.

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[Viscount Hailsham]

What about fees and charges? Are they the same?

[Lord Turnbull]

If something generates a surplus, it is equivalent to a tax and should be covered by the same legislative understandings about taxes.

There is a third category, where a conscious policy relates the fee not according to how much it costs to administer that piece of service to a business or a household but to something like wealth or income. The most egregious example of this was the recently introduced change in the schedule of probate charges, where larger estates are being asked to pay not what it costs to administer the probate but according to the size of the estate, producing charges many times greater than the pure costs. We need to decide in this amendment whether all fees and charges should be treated as taxes—that would be the simplest thing—or whether it is possible to make a distinction between those fees which are purely covering costs and those which go beyond, either in the total or in their social distribution. I hope that the Minister will agree to come back to this House with amendments which make that distinction.

The issue will resurface when we get to Amendments 348 and 349, which deal with Schedule 4, where we have the possibility that secondary legislation could be used to introduce fees and charges by a body that was itself created by secondary legislation. I should say that that would put us not just in double jeopardy but jeopardy squared. We are going to have to deal with the problem of these two points in our work on the Bill.

[Baroness Kramer]

My Lords, I have put my name to Amendments 86 and 127. I will be very brief because the noble Lord, Lord Turnbull, has described the problem we have over fees, charges and legislation. I remember that, when I was on the board of Transport for London and we brought in the congestion charge, it was the alliterative nature of the word “charge” that led us to use it, rather than any legal definition. So my answer to the noble Viscount, Lord Hailsham, is that there may well be legal definitions but I think they are now observed in the breach on many an occasion.

[Viscount Hailsham]

The community charge was clearly a tax and not a fee.

[Baroness Kramer]

The noble Viscount gives a superb example. We can think of parking charges and a whole wide variety. That is why it is really important that there is clarity over when a statutory instrument is the appropriate mechanism and when, frankly, it is not. The Bill as it stands does not give that clarity.

I also put my name to these amendments for another reason. Most in this Committee will remember the time of the tax credit debacle, a major policy change that most of us regarded as a change that should have been introduced as part of a welfare Act. The Government sought to accomplish that through a statutory instrument attached to a Finance Bill. Because of the nature of charges and money-type instruments, it is very possible to use them to affect very broad policy issues and not just the narrow issue of revenue raising. That is why Amendment 127, for example, is an important amendment, as are others in this category. We are all concerned about the inappropriate use of Henry VIII powers, since this Government have actually tried to use these to achieve those much broader policy ends in the past. We have to be sure that we are not leaving a mechanism by which that could be repeated, because that really would be a coach and horses through many of the concerns and issues that have been raised.

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[Baroness Whitaker (Lab)]

With some timidity, may I offer a cruder and less specialised perspective, somewhat along the lines of the noble Lord, Lord Tyler? Taxation and mandatory fees and charges are surely, in principle, cardinal to the social contract and the liberty of the subject—that is, the subject cedes liberty as part of a democratic deal. In the past when monarchs have attempted to impose taxes, Parliament has continually rebelled. It is Parliament’s job to decide taxation, fees and charges, through primary legislation. I deeply support these amendments.

[Viscount Hailsham]

My Lords, I support the amendments in this group, most notably Amendment 86, the lead amendment. The first thing to perhaps acknowledge is how wide the power is in Clause 7. I acknowledge that the Minister will make this point. The power proposed under Amendment 86 would be governed by the overarching provisions of Clause 7, but it is also fair to point out that Clause 7 has a very wide scope. If one looks at Clause 7(3), one sees that the Minister has a power to enlarge the interpretation of the legislation in question.

The second point is that if one looks at paragraph 2 of Schedule 7, one finds that a fee—an important word in this context—imposed by a public authority can be created only by the affirmative procedure. What the Committee needs to address, however, is the distinction between a fee and a charge. The noble Lord, Lord Turnbull, suggested a difference, which I think was that a charge involves a surplus, so that perhaps it should be treated as taxation. But I am not sure that definition is recognised by law.

[Lord Turnbull]

I do not think I was making a distinction between fees and charges—they are just words. They broadly mean the same thing and both suffer from the same defect.

[Viscount Hailsham]

I am very grateful to the noble Lord and I am sorry if I misunderstood him, but I understood that he sought to suggest that a charge that creates a surplus in effect amounts to a tax. However, I am bound to say that if he is right and these things are essentially the same, that creates a very major problem. Paragraph 2 of Schedule 7 says that an instrument that allows the imposition of a fee by a public authority can be created only by affirmative resolution. But then, I ask rhetorically, what about a charge? If the fee is governed by the affirmative resolution procedure and a charge is not, we are in an extremely difficult situation. What is a charge? Incidentally, I am not sure this really helps the noble Lord, Lord Turnbull, but if one goes to paragraph 6 of Schedule 4, one finds the phrase “fees or other charges”, which rather suggests to me that there is a distinction between a fee and a charge.

I have a number of specific questions for my noble friend the Minister. First, what is the difference between a fee and a charge? Secondly, related to that, does the provision of paragraph 2 of Schedule 7, which insists that a fee can be imposed only after the creation of a power by an affirmative resolution, also apply to a charge? If it does not, we have a wonderful situation whereby the fee can be imposed only if the power is created by a statutory instrument of the affirmative kind but that is not true of the charge.

[Lord Carlile of Berriew]

May I throw another word into this taxation Scrabble? What about the word “contribution”? Most of us in this House have paid national insurance contributions for most of our lives. Is that a tax, a charge, a fee or a contribution?

[Viscount Hailsham]

The point is a very sound one, although of course most of us no longer pay national insurance contributions. There is of course another word that one could use, which is “imposition”, as in a financial imposition. The real truth is that we are entitled to a proper definition.

Having focused on some specific narrow points, I would just like to look at one or two general ones. The first is the point that I made on Wednesday, and I shall keep a firm grip on it: any power given to Ministers and officials will be abused. That is an absolute cardinal rule of politics. Secondly, the degree of ministerial and parliamentary control on any statutory instrument is minimal. I speak as one who has considerable authority for saying that: for 10 years I was a Minister and I do not know how many scores of statutory instruments I signed off, but it must have been a very large number.

[Lord Forsyth of Drumlean]

Too many.

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[Viscount Hailsham]

My noble friend Lord Forsyth was also guilty, I hasten to say; we were the same in that respect.

The third point is that statutory instruments are not amendable by either the negative or the affirmative procedure. Moreover, and this is the point that we dealt with on Wednesday, the regulation-making power is triggered if the Minister thinks it appropriate. I remember very clearly the way that my noble friend Lord Callanan dealt with the argument that we should delete “appropriate” and insert “necessary”. He did not like it, but he is left with this: if a Minister, by affirmative or negative resolution, thinks it appropriate to levy an imposition—a charge, a contribution, a fee—on a citizen, he can do that. I regard that as a very unhappy state of affairs and, should this come to Report, I will not be supporting it.

[Lord Deben (Con)]

My Lords, I was once estimably advised by the noble Lord, Lord Turnbull. I want to look at this amendment from the point of view not of the civil servant but of the Minister. I think your Lordships’ House has already understood how difficult it would be for a Minister to understand what he could or could not do under this part of the Bill. First of all, he would have to turn to the modern equivalent of the noble Lord, Lord Turnbull, to ask him what the distinction between a fee and a charge was, and I am not sure that the noble Lord’s equivalent could be entirely precise as to what that distinction was because it is almost impossible to tell.

The noble Lord sitting next to the noble Lord, Lord Turnbull, got up and pointed out the word “contribution”. Of course when talked of in terms of national insurance a contribution is manifestly a tax, but it does not cover the cost of the service to which it is actually appended. It must therefore be possible to have a fee that does not cover the cost but is in fact a tax. That suggests that this part of the Bill—I do not speak of any other part—has not been entirely well thought through.

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[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, Amendments 86, 126, 127 and 155—in the name of the noble Baronesses, Lady Hayter and Lady Kramer, and the noble Lords, Lord Turnbull, Lord Lisvane and Lord Higgins—concern Clauses 7, 8 and 9 and the ability to provide for taxation or fees and charges under those powers.

Let me start by saying that the Government are aware of the concerns of many noble Lords about the raising of fees under these powers. On Report, we will look closely at how we can resolve those concerns. Let me explain the various issues, beginning with Clauses 7 and 9. I am glad to be able to reassure noble Lords that the restrictions in Clause 7(7)(a) and Clause 9(3)(a) already prevent Ministers establishing charges of a type that would involve any element of taxation or tax-like provision under these powers. Beyond that specific issue, I want to set out the Government’s intentions with regard to those fees and charges.

[Viscount Hailsham]

Will my noble friend tell the Committee what, in his view, is the essential difference between a fee, a charge and a tax? The Committee must understand the expressly defined difference.

[Lord Callanan]

If my noble friend will stay with me, I will come on to that. Beyond that specific issue, I will set out the Government’s intention with regard to fees and charges. We have included the powers in Schedule 4 to provide for fees and charges in order to be clear and transparent. It is, however, necessary for the powers in Clauses 7 and 9 to interact with existing regimes to correct deficiencies within them, and to properly modify them to reflect the withdrawal agreement. Without prejudice to our negotiations, an example of such a correction might be modifying a fee in relation to the authorisation of a credit rating agency so that the fee becomes payable to the UK financial regulators rather than the European Securities and Markets Authority. That might be argued to amount to the imposition of a new fee.

The requirements to pay new fees and charges established under Schedule 4, and the ability to modify existing regimes, will depend on deficiencies being properly corrected and on functions being transferred. Clauses 7 and 9 are not primarily aimed at imposing fees, and they cannot impose other kinds of charges, but sometimes that will be part and parcel of the correction. In answer to the questions about fees and charges from the noble Viscount, Lord Hailsham, the noble Lord, Lord Deben, and the other poachers turned gamekeepers—if I may refer to them as that—on the Privy Council Bench, a fee is a payment only for a service received. By a charge, in paragraph 6(2) of Schedule 7, we mean anything which goes beyond cost recovery. Clause 7 cannot create a charge. In addition, creating either a fee or a charge is subject to the affirmative procedure.

The argument against a tax restriction—

[Lord Lisvane]

Before the Minister responds to that point, could he also answer my question? He has sought to make a distinction between a fee and a charge. Could he explain why, at page 761 of the latest edition of Erskine May, there is no distinction made between fees, charges, impositions, contributions or anything else of that sort? The test which is set out there, and is reflected in the current practice note from the Office of the Parliamentary Counsel—available on its website—is whether or not those payments are,

“akin to taxation in their effect and characteristics”.

I suggest that an additional test needs to be applied to the template which the Minister has offered.

[Viscount Hailsham]

I am sorry for my noble friend, but he did say that both the fees and the charges were subject to the affirmative procedure. I know that the fees are, but I am not sure where in the Bill I find the provision that charges are subject to the affirmative procedure. Will he tell the Committee?

[Lord Callanan]

I do not have the specific clause in front of me, but I am sure that is the case and I will write to the noble Viscount about it. I am not an expert on Erskine May and the precise legal definitions, but I will have a look at the matter towards which the noble Lord, Lord Lisvane, has pointed me.

The argument against a tax restriction on Clause 8, made by the noble Lord, Lord Lisvane, is altogether different. The Clause 8 power is predicated on the fact that when we leave the EU, without further action we may inadvertently end up in breach of certain international obligations which have been affected by our EU membership, as a number of noble Lords have pointed out was said in the other place by my honourable friend Robin Walker. It is possible that some of these obligations may be in the field of tariffs, although it is, of course, impossible to know the full picture until our future relationship with the EU has been negotiated. If Clause 8 had a tax restriction as the other main powers do, we may not have the capability to remedy these breaches in all circumstances. As I hope noble Lords will appreciate, we are committed to international relationships and a key part of that is ensuring that we are fully compliant with our international obligations.

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[Viscount Hailsham]

What about “appropriate”?

[Lord Callanan]

It would be totally appropriate and, indeed, necessary to do so in the circumstances. We are in a difficult position in that we are trying to plan for all eventualities. It is one of those powers that we hope we will never use because, of course, we want, and seek, a good agreement with the EU.

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[Lord Callanan]

My Lords, I had intended to stand up before the noble and learned Lord sat down to respond to his kind invitation. Perhaps it would be to the benefit of the House if I note that, as the noble and learned Lord has pointed out, this issue has been debated previously in the debate on the sanctions Bill. As with the issue we debated last Wednesday—the appropriate test for the use of delegated powers—the solutions found in the sanctions Bill are at the forefront of our minds in this regard and we intend to meet noble Lords to discuss the issue over the coming weeks. I will set out the Government’s views at the conclusion of the debate on this group of amendments. I very much look forward to hearing what noble Lords have to say but I thought it would be helpful to say this at the start.

[Viscount Hailsham]

My Lords, in view of what my noble friend has said, I can be very brief. I support the first four amendments in this group, to which I have set my name, and have ventured to put forward a sort of default position in my Amendment 340. As the Committee will appreciate, the purpose of the first four amendments is to ensure that the regulatory power now under discussion cannot be used to create a criminal offence, and the noble and learned Lord, Lord Judge, has set out very clearly the reasons for this. Amendment 340, which stands in my name, is the default position, so that if by any evil chance this Committee or your Lordships’ House decided that it was right to create a criminal offence, it should be one that does not attract a custodial sentence.

We need to be quite plain about what we are talking about. The Bill as presently drafted enables the Minister, if he deems it appropriate and subject to the affirmative resolution, to create a criminal offence that attracts a custodial sentence of up to two years. Two years is not an insignificant period, and it is very important that one reminds oneself that the test is whether the Minister thinks it is appropriate. Furthermore, we must go on reminding ourselves that the procedure—that is the affirmative resolution procedure—is simply not subject to amendment. So this is, in effect, the power to introduce a criminal offence which attracts a custodial sentence by fiat or declaration. I find that profoundly unattractive.

As a former Minister who signed an awful lot of statutory instruments, I know that the degree of ministerial oversight is extremely limited. As I said, if this Committee decides that a criminal offence should be creatable in this way, then surely it should not attract a custodial sentence of any kind.

[Lord McNally (LD)]

My Lords, my name has been added to a number of the amendments in this group and I appreciate the Minister’s intervention, which should make this debate fairly short. I want to take up an earlier point made by the noble Viscount, Lord Ridley: he said that he thought some of the speeches were too long and bordering on filibustering. That set a little alarm bell ringing in my mind. I have sat in on some of the debates and I have read others, and I think that this Bill is being handled by this House in the appropriate way that it deserves. Some of the speeches, from all the Benches, have been among the best I have heard in parliamentary debate.

The Minister, in referring to his Privy Council Bench, said that they were poachers turned gamekeepers. I say, en passant, that I look on them as sinners turned penitents, but that is a matter of taste really.

As I say, there have been some magnificent debates, but I worry where we are going on this. Sometimes I wonder whether the Ministers are adopting the tactics of the great boxing champion Muhammad Ali. His “rope a dope” strategy was to take all the punishment in the early stages and then have his own way in the later stages of the fight.

I hear what many noble Lords have said—the noble Lord, Lord Cormack, among them—that of course the House of Lords can go only so far with its opposition in the face of the Commons. The contribution from the father of the noble Viscount, Lord Hailsham, who warned of an elected dictatorship, comes into play here. So too does something I have mentioned on a number of occasions over the past 20 years that I have sat in this House: this House has the right to say no. We must ask ourselves why successive Governments, some with very large majorities in the House of Commons and some who have reformed this House from time to time, have left it with the right to say no. The reason is that unless we retain the right to say no, we would become a debating Chamber and the Government could simply use their Commons majority to force things through willy-nilly, regardless of whether or not we oppose them. I realise that, in some areas, we bow to the wishes of the elected House, even when we do not want certain things to go through.

As happened in the past two sittings of this Committee, we have discussed in great detail two very important constitutional issues: the right to impose taxation and, now, with this group of amendments, the right to create criminal offences. The proposals go to the very heart of our constitutional settlement and, in my opinion, to the very heart of the responsibilities of this House. Therefore, although I appreciate that a considerable promise was made at the opening of this debate, I say this to Ministers and to colleagues who have made outstanding speeches: regarding our red lines about the right to impose taxation and to create criminal offences, somewhere down the line, if what the Government come up with is not satisfactory, in our responsibility to defend the constitution this House must reserve the right to say no.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Wilson of Dinton (CB)]

My Lords, in moving Amendment 71, I will also speak to Amendments 116, 253 and 257, which are in my name and the names of my noble friend Lord Lisvane and the noble Lord, Lord Tyler, and the noble and learned Lord, Lord Goldsmith. My noble friend Lord Lisvane has asked me to convey his apologies for not being here to move the amendment himself, but he has to be absent to speak at a memorial service in Cardiff for an old friend. I am sure the Committee will understand that reason.

I feel we are now coming to the heart of the Bill. I confess that, while listening to the debates, I have found myself thinking of the Bill as creating a Frankenstein’s monster. It is sewing together 40 years of EU law, snipped around to fit with this country’s law. Clause 7 gives a Minister of the Crown the power to snip away at EU law and British law to try to get them to fit together. It is a task on a huge scale, and I do not believe anyone, wherever they are working, can quite get their mind round it at the moment or round what the consequences will be.

These amendments would tighten, in two ways, the threshold which the Minister of the Crown has to reach in order to be able to exercise the powers. They would tighten it by providing, first, that the powers could be used only where it was “necessary” to use them, not where it was considered “appropriate”. Secondly, they would give an objective test for whether the use of the powers was necessary, rather than the subjective test of whether the Minister considered it appropriate.

I believe that such changes are needed and would be justified by three things. First, there is the sheer scale of the task being undertaken. Of course, there are limits to the power—it can only be used to correct deficiencies in EU retained law which arise from withdrawal from the European Union and do so in areas which are not excluded by Clause 7(7)—which are important. But there are still huge swathes of law which could be amended under the powers. From listening to a sample of the debates that the Committee has had over the last days, those include human rights, the environment, the welfare of animals—there is very little in the legislation we are dealing with that does not affect most aspects of people’s lives in this country.

The power itself is very broad: to make law which has the status of an Act of Parliament. An extraordinary subsection, Clause 7(5), says:

“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament”.


We are talking about the power to make Acts of Parliament without going through the processes of Parliament, which I find breath-taking.

[Viscount Hailsham (Con)]

And in an unamendable sense, because it is to be done by resolution—there can be no amendment to those resolutions.

[Lord Wilson of Dinton]

The noble Viscount reinforces the point which I am trying to make. The Explanatory Notes explain that the power also extends to,

“altering Acts of Parliament where appropriate”.

We are talking about the power to make law and to amend existing law. This is the dream of tyrants through the ages. It is something which is repugnant to the history of this country and the development of our legal system. My argument to the Committee is that the House should lean as hard against it as it can, provided that does not get in the way of achieving the desired result of a functioning legal system. We should not leave leeway which allows Ministers to do things which would be policy changes. I am uneasy about the danger that policy changes could come through the use of the power.

When you try to marry 40 years of legislation with British law, there will be endless choices to be made: you could go this way; you could go that way. Policy is tied up in the interstices of quite small decisions about how the laws should be married together. We should lean against anything which encourages policy change and we should focus the Minister’s power exclusively on achieving a functioning legal system, without going wider. If the law as it emerges needs to be improved, it should be improved by separate legislation that goes through proper processes. We should give only the power that is strictly necessary from the point of view of the objects of this legislation.

Another point I draw to the Committee’s attention is the number of people who will be able to make and amend law. I am not a lawyer—I was 50 years ago, but I am not now—but if I read the Bill correctly, it gives the power to a Minister of the Crown, as defined in the Ministers of the Crown Act 1975. Section 8 of the Act says that a Minister of the Crown is anyone who holds,

“office in Her Majesty’s Government”.

I have not checked this, but my memory is—it used to be imprinted on me when I was working in the Civil Service—that you can have up to 109 Ministers in the Government, so 109 people are being authorised to make or to amend law. In addition, the Commissioners of Customs and Excise will be given the power to make law and amend law, subject to the restrictions. That is another seven people—a Permanent Secretary and a number of directors-general—being given this power which tyrants dream of.

In addition, I draw the Committee’s attention to where the Explanatory Notes say that the power could include,

“sub-delegating the power to a public authority where they are best placed to deal with the deficiencies”.

So we are talking about giving public authorities the power to make law without going through parliamentary processes and to amend law. What is a public authority? According to Section 14, “public authority” is defined by Section 6 of the Human Rights Act 1998. If you read that Section 6, which I will give in its entirety, it says in subsection (3) that,

“‘public authority’ includes … a court or tribunal”.

I ask the Minister: are we seriously proposing to give the power to make law to a court? This is constitutional territory which is completely novel. Paragraph (b) in that subsection says that “public authority” includes,

“any person certain of whose functions are functions of a public nature”.

The proposal before this Committee is that the power to make and amend law within the conditions set out in the clause could be capable of being given to any person certain of whose functions are of a public nature, which in essence is any public servant. I put it to the Committee: is this necessary or reasonable?

[Lord Wilson of Dinton]

Is this reasonable without reference to Parliament, or to the lightest sifting procedure where any recommendations can be made?

I ask the Minister whether he has an estimate of how many people may be given the power to amend law and make law. I would be interested just to know the number. If you have so many people, possibly hundreds, given the power, you should restrict it as much as you possibly can, so far as is consistent with the objects of the Bill.

Why do I think that the phrase “the Minister considers appropriate” is inadequate? First of all, “appropriate” is a word which should be avoided as much as it possibly can. In my last jobs in the Civil Service, I was sometimes faced with proposals that the Minister should be able to do something “when appropriate”. I always reached for my red pen and struck it out.

[Viscount Hailsham]

I would always include it.

[Lord Wilson of Dinton]

I think we are making the same point, which is that it either conceals inadequate thought, or it is devious.

Of course, the truth is that, if you are in government, you want to surround the Minister and yourself with plump cushions of legal protection. The legal phrase is “ex abundanti cautela”. It is about excessive caution—you do not want to take risks. I have to say to the Committee that, in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection; it should be the strict discipline of an objective test of what is necessary.

It is interesting that the Government themselves, in their White Paper last March, used the language of necessity. The White Paper twice said that the powers would only be usable “where necessary”. In the cases which it provided where the powers might be used, it used the word “need”: it used the language of necessity; it did not use this language of appropriateness. I think it is only recently, with the sudden alarm that the scale is going to be so great, that the desire for plump cushions has arisen. I think that the Government are backing away from an undertaking only to have the power usable where it is necessary, which they gave in March last year and which they should have stuck to.

There are all sorts of arguments which may be used, such as that the word “appropriate” is used in other legislation. I think that is true, but I do not think that it is justified in this case, where the scale is so extensive. It could be argued that, when faced with a choice, there are different solutions and, therefore, there is no solution which is necessary. That is a flimsy argument—that horse will not run. What we are saying in this amendment is that the power should be used where its use is necessary, not where the solution is necessary.

--- Later in debate ---

The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Does the Minister appreciate that? Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined.

[Viscount Hailsham]

Not only that, but the more tightly constrained the language of the Bill, the more readily the courts will intervene.

[Lord Bilimoria]

I thank the noble Viscount for that intervention. At the moment, the courts very rarely intervene. They had to intervene with Article 50 being put through Parliament; that was fundamental. This House defeated the Government twice by almost 100 votes each time in two of the biggest votes in the history of our Parliament—614 of us voted in one and 634 in the other. Do we want a situation where this Parliament or the Government are continually challenged by the courts? We do not want to go there, and this is why these amendments are important.

I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.

--- Later in debate ---

[Lord Dykes (CB)]

My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, all saying similar things, and I entirely concur with what was said. Therefore, I can be very brief. First, I thank my noble friend Lord Wilson for his remarks. I apologise to him for missing the first minute and a half of his speech because I naively thought that two government Statements would last a bit longer than they did; they were very brief indeed. I surmise that my noble friend referred to my noble friend Lord Lisvane, a very good friend to many of us. I assume he is on onerous public duties in Herefordshire. Sadly, the noble Lord, Lord Tyler, cannot be present due to illness. Therefore, two sponsors of the amendment are sadly unable to be here but that in no way weakens the strength of this message for the Government. I hope the Ministers on the Front Bench will listen very carefully to these words.

It is also worth noting that, apart from a later big grouping, this group contains the largest number of amendments of any group since the Committee proceedings began. This is the subject that most exercises the Members of this Committee and, I think too, quite a number of MPs although they are sometimes under much greater pressure for obvious reasons not to say too much about it.

I was very struck by what the noble Lord, Lord Sharkey, said and by what he said representing the noble Lord, Lord Tyler. Since I am an amateur and not an expert on these matters, I was impressed by the comments of the Bar Council on its worries about these matters. In paragraph 60 of its general statement, it said:

“Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) includes an open-ended power to make ‘any provision that could be made by Act of Parliament’. There are comparable Henry VIII powers in Clauses 8(2) (in respect of regulations to ‘prevent or remedy’ any breach, arising from Brexit, of the UK’s international obligations”.


It went on to say in paragraph 61:

“We consider that these provisions (and in particular Clause 7) continue to raise serious concerns both from the perspective of the rule of law and the sovereignty of Parliament and in respect of legal certainty”,


which we sometimes forget. By the way, as the sunset clause possibilities in Clause 8 have been mentioned by at least one speaker, in paragraph 67, the Bar Council adds:

“While we recognise that the Henry VIII power in all three clauses (7-9) is subject to sunset provisions, we do not think that this is sufficient to address the above concerns. As noted in the introduction to this paper, the operation of the amending powers and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period or under the Withdrawal Agreement”.


I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment. I anticipate a major expression of unease, to put it mildly, when Report stage comes along. I hope and pray that will be so, and we look forward to the Minister speaking in the framework of that need to assuage our anxiety when he comes to reply.

[Viscount Hailsham]

My Lords, I rise to speak primarily —subject to pre-emption, whatever that means—to Amendments 73 to 79 and Amendments 117 to 119, which are in my name.

I think we ought to start the debate—although we have started it already—by reflecting on how very wide the powers contained in Clauses 7 to 9 are. They are powers exercised by regulation: mostly by the negative procedure, but some by the affirmative procedure. However—this is the critical point—in both instances, the regulations when laid cannot be amended. That raises an issue that I hope this House will come to on some subsequent occasion, because I have a number of amendments in my name on that very subject.

These powers are very wide-reaching. One way of ascertaining how significant they are—I hope the right reverend Prelate will forgive me if I use the word “significant” in this context—is to look at paragraph 2 of Schedule 7, which lists the provisions that can be made only by the affirmative procedure. I cite a few examples: the creation of a public authority and presumably the powers to be given to it; the transfer of legislative powers from an EU entity to a UK-based public authority; the levying of fees without specific limit, which I am sure noble Lords know we will come to later in Committee; the creation of criminal offences that attract a custodial sentence of up to two years, which, again, we will come to later in our debate; and the creation of powers to legislate or amend existing powers. These powers are not trivial in character. I have not sought to identify the various powers that could be exercised by way of the negative procedure, because their name is legion.

There is one fundamental rule in politics, which I have learned from 31 years in the House of Commons: if you give powers to Ministers and officials, those powers will be abused—sometimes by design and sometimes by inadvertence, but the abuse will happen and that is certain. It is especially so when the powers are created by secondary legislation because the parliamentary oversight is slight and ministerial oversight is often non-existent. So the question your Lordships should be asking—I agree with my noble friend Lord Lang that it is a pity more noble Lords are not asking themselves this question tonight—is whether the language in the Bill is sufficiently tightly drawn to prevent abuse. The answer to that question is manifest to all of us and all noble Lords who have spoken: no. The Bill does not prevent abuse; it enables abuse.

The powers given to Ministers are “appropriate”. That is a weasel word. Nobody is better placed than I to describe it as such. It is a subjective word, very difficult to define in advance, impossible to challenge and non-judicable. That is why, when I was a Minister, I used it often—at the Dispatch Box, in drafting and in correspondence. I knew full well, as does every person who has stood at the Dispatch Box, that “appropriate” means precisely what the Minister wants it to mean. The noble Lord, Lord Campbell, is quite right about that. Might I suggest the Corbyn/Johnson test to your Lordships? It is very useful. I look to my side of the House and ask, “How many of your Lordships want to see Mr Corbyn possessed of these powers?” I now turn to the other side of the House, lest noble Lords think I am being partisan, and ask, “How many of your Lordships want to see Mr Johnson possessed of these powers?” The joke is that you can reverse the question and get the same answer.

We should not allow the draft as it is. I accept that the distinction between “necessary” and “essential” is pretty minor. I can live perfectly well with the word “necessary”. “Essential” is one notch higher in the hierarchy of requirement but I accept that “necessity” has been hallowed by legislation in the past. I encounter that word frequently in regulatory law, and the noble Lord, Lord Campbell, was absolutely right to touch on the point of judicial review. If you use the word “necessary”, it makes things easier to challenge. There have been many appeals in the regulatory framework where the courts have held that the test has not been laid out.

I want to comment on two other amendments I have ventured to propose. Amendments 74 and 117 require the Minister to have “reasonable grounds” for his or her decision on the need to trigger the regulation-making powers. I will be open about this: my purpose is to tighten the test, to make it judicable and to limit the discretion. I would very much like to know from the Minister why he objects to the use of reasonable grounds as the criterion for exercising the power. I am sure he is not going to say that he wants to rely on unreasonable grounds; that is not, I think, an argument he would like to put forward. We are entitled to know the justification.

I have one very small point on Amendment 75, which includes a reference to redundancy. What does that reference add to what is already covered by the retained part of Clause 7(2)(a)? It comes to this: the main issue for this House is to require a test of necessity to be imported into these three clauses and elsewhere in the Bill where the Government want us to accept a lower threshold of need—or, more precisely, put no threshold at all. I regard this as matter of considerable importance and I want to know—as I am sure the Committee does—why the Government want us to prefer a word that gives the maximum discretion to Ministers, but the minimum control and influence to Parliament and the courts.

--- Later in debate ---

[Lord Goldsmith (Lab)]

My Lords, these are hugely important amendments. The Minister will have noted that not a single Member of the Committee has spoken in favour of the present position in the Bill. From all sides of the Committee, it has been stated that the Bill, as it stands, is not acceptable. I am sorry that the noble Lord, Lord Lisvane, is not present today, for reasons that we all entirely understand. Noble Lords will recall what he said at Second Reading, when he talked about this as the biggest transfer of power from Parliament to the Executive in peacetime. I entirely agree. I agree with what has been said by the noble Lords, Lord Wilson of Dinton, Lord Cormack and Lord Lang of Monkton—with whom, or rather under whom, I was privileged to serve on the Constitution Committee, when he chaired it. I agree also with the noble Lords, Lord Beith, Lord Wallace of Saltaire and Lord Campbell of Pittenweem. Everybody has taken the same position in relation to that.

Let us look at the key amendment, Amendment 71, to which I am privileged to have added my name, just to note the importance of what it does. It would replace the statement that “the Minister considers it appropriate” with “it is necessary”. As a former Minister, as a former adviser to Ministers and as a practising lawyer, I fully see the significance of that change. I know as a lawyer that if I am able to say to the judge, “All that is required is that the Minister considers it appropriate—how can you say that he did not? How can you second guess that?”, I am home and dry. If, on the other hand, I have to show that it is necessary—not just in the Minister’s decision, not just on reasonable grounds, but that it is in fact necessary—then that is the test that the court has to undertake in order to satisfy itself. The point behind these amendments is that nothing less than that will do to enable this huge transfer of power to the Executive from this House.

I do not need to repeat the remarks made by other noble Lords about how taking back control should not mean taking back control by the Executive—that is not what anybody had in mind. I do not need to repeat the remarks about the number of Ministers that this gives power to. I am not even sure that the figure of 109 is right. I recall, in government—no doubt the Minister will tell me that it does not apply here—that all Ministers can act, and often do act, by their officials. The Carltona principle means they can sign the instruments, so it may mean that the 109 is multiplied manifold. I have no doubts about their good intentions, but this is not what our system requires, and we should not be giving it up in these circumstances.

Other noble Lords, including the noble Lords, Lord Bilimoria and Lord Dykes, and the right reverend Prelate the Bishop of Leeds, have also spoken powerfully in favour of these amendments.

I have a couple of other points to make, as most of what I wanted to say has already been powerfully and clearly expressed by noble Lords. The most important point is the one I started with, which is that the Minister must see the unanimity of view, as it appears at the moment, around the Committee about the change that needs to be made. We can debate whether it is essential or necessary. I rather agree with the noble Viscount, Lord Hailsham, that “necessary” has become a term well understood by the courts and so it is probably the better one to have, but the end aim is the same. That it is not a decision for the subjective view of the Ministers is the other key point on which we agree.

One point that I want to deal with, which has not had much discussion so far—although the noble Lord, Lord Beith, raised it—is Amendment 244A. It proposes that there should be a statement by a Minister as to the need for the change, and it is not simply a policy change. There is merit in that proposal, I would suggest, though not as a substitute for the amendments we are proposing. I draw attention to the similarity with Section 19 of the Human Rights Act, an excellent provision which requires that a Minister has to certify that a piece of legislation is compatible with the convention rights. We see it on the very front of this Bill itself. I am sorry that the noble and learned Lord, Lord Irvine of Lairg, is not in his place. He had a lot of involvement in making sure that that worked, by insisting that when it came to certifying that legislation was compatible, it was not just on a wing and a prayer.

[Viscount Hailsham]

I am grateful to the noble and learned Lord. Taking his point, if you were to combine the certification together with the requirement that the Minister had to have reasonable grounds for triggering regulatory power, then one has a very high degree of protection, does one not?

[Lord Goldsmith]

I am grateful to the noble Viscount. I would go further. First, I would say that the amendment needs to change the test so that it is “necessary”, not “considers necessary”, not “considered on reasonable grounds”. Secondly, the way the Human Rights Act certification works is that it is not enough for the Minister to have “reasonable grounds” that it may be compatible. What is required—at least when I was in government, and as a result of the diktat that was given to the Civil Service—is that the Minister must have legal advice that, more likely than not, the court would agree. I am glad to see the Minister nodding because that means that the same principle is being applied under this Administration as under the Administration in which I was privileged to serve.

Therefore, I take the noble Viscount’s point, but it is important that it is not just a consideration but an actuality based not on reasonable grounds but on fact. Obviously there is some judgment to be made about “fact” but it needs to be clear and there might, in addition, be a role for something like Amendment 244A.

This is the second time today that this Committee has considered the use of the word “appropriate”. Those who were not able to be present may wish to read the report of the earlier debate when we considered the use of the word “appropriate” in rather different circumstances—whether judges could and should rely on European case law in reaching decisions and whether it was enough that they should find it relevant or appropriate. One noble Lord who is not in his place suggested that the judges could use the law if they found it “helpful”. My worry is that that is exactly what the Government think “appropriate” means here. If this power means that Ministers can make regulations and changes because they think it helpful to do so, that is not what this House should allow them to do.

--- Later in debate ---

[Lord Callanan]

If the noble Lord will have a little patience I will get on to that in a second.

If regulations could only make “necessary” provisions, the powers would be heavily restricted to a much smaller set of essential changes. For example, if the Government wanted to change references in legislation from euros to sterling, we would expect such a change to be considered “appropriate” both by the courts and, I hope, by this House, but it might not be considered “necessary”.

We might manage to ensure that our statute book is in a legally operable state, but it would not be in its most coherent form, or arranged in a way that best promotes our national interest. I am sure that this Committee does not intend to restrict the Government from legislating coherently or in the national interest, but that may be the unintended consequence of amendments which swap “appropriate” for “necessary”.

I note that some of the amendments in this group contain wording suggested by the DPRRC in its report on the powers in this Bill. In particular, I was interested in the assertion that:

“The operative test in Clause 7 should be whether it is necessary to deal with the problem, not whether only one solution follows inexorably”.


I first highlight that I do not believe that these amendments break up the necessity process in the way that the committee intends. I also question the merits of breaking up the necessity test in the way that the committee suggests. In its report, the committee cites the example of a deficiency in which there is:

“A requirement to collect and send information that will no longer be accepted by the EU”.


The committee states that it,

“is clearly a deficiency that it is necessary to remove from the statute book: it cannot be right to retain a redundant legal duty that amounts to a waste of time, effort and public money”.

However, I question whether this change is strictly necessary, or whether it is merely appropriate. The committee asserts that it cannot be “right” for this arrangement to continue—and I agree with it—but is it strictly “necessary” that it be removed? What great harm, after all, would be done if the information were still sent? The statute book would continue to function, albeit illogically and not in the public interest. But is it necessary, in a strict legalistic sense, to have the statute book working logically and in the public interest, or are all our changes merely appropriate? In these sorts of instance we cannot with any certainty predict the way in which a court might rule. It is precisely to guard against such a decision that the Government cannot support the suggestion made by the committee.

[Viscount Hailsham]

Is the Minister saying that he will not accept these amendments because he might be defeated in court? If so, that is a thoroughly bad reason.

[Lord Callanan]

I think I have made my position clear on that but, nevertheless, I also said that we are listening and endeavouring to satisfy the concerns of noble Lords.

Amendments 73, 119 and 141 tabled by the noble Viscount, Lord Hailsham, and also spoken to by my noble friend Lord Lang, meanwhile used “essential” rather than “appropriate” to limit the discretion of Ministers in exercising the delegated powers. This really is very similar to the amendments which propose the use of “necessary”. I think that a court would likely interpret the meaning of “necessary” and “essential”—in this context—in much the same way and, therefore, I will not repeat the arguments that I have already made.

European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

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

[Viscount Hailsham (Con)]

My Lords, I begin with an apology to your Lordships’ House. Because of professional engagements I was unable to be present for the opening speeches of the debate at Second Reading, but I have been able to reassure my Front Bench, and most particularly the Whips, that they can be certain of my presence throughout the Committee and Report stages.

I should like to speak briefly on those amendments, particularly Amendments 6 and 7, that deal with the customs union and the single market. I wish to express my deeply held view that we need to remain members of the single market and the customs union, or something very like them. That is absolutely essential if we are to retain our national prosperity. I agree precisely with what the noble Lord, Lord Newby, said on this subject, and all the analyses thus far bear that out. Indeed, we are seeing current prejudice being caused in terms of reduced investment, reduced growth and reduced spending. You do not have to look into a crystal ball; it is happening now.

Perhaps I may also say—with some regret, because I am talking about colleagues of mine in the other place—that those who have criticised the analysis produced by civil servants have in my view brought discredit upon themselves. As a Minister, I worked with officials for more than 10 years. I never knew or encountered a conspiracy to frustrate the policy of Ministers. I believe profoundly that those analyses were made in good faith and broadly speaking are correct. I also agree with the noble Lord, Lord Newby, that they should be published. They may not be right to the nearest decimal point, but I am certain that they correctly identify the direction of travel. I have never thought that Brexit was a car crash, but I do believe it takes the form of a seriously deflating tyre and will cause the same kind of trouble.

Turning to the point made by the noble Lord, Lord Carlile, on Northern Ireland, I wholly agree with him and, if need be, I shall be voting accordingly in the same Lobby as him. We have talked about and agreed to a frictionless border between the Republic and the Province. I do not see how that can be achieved other than by the customs union or something very like it. Those who talk about technology are, I think, talking rubbish. I know of no technology that would achieve that purpose, and if there was such technology, I do not believe it would be affordable by a whole range of smaller businesses.

Incidentally, although it is to digress a little, I think that one of the surprising consequences of Brexit is that we will be asked to consider identity cards for British citizens. Once we have a frictionless border in Northern Ireland and once we have migration—as will happen—how can we operate our immigration controls without identity cards? That will be a very considerable consequence.

I want to make one final point, which echoes one made by the noble Lord, Lord Wigley. Nothing was said in the referendum that obliges this House or Parliament in general to do something that is deeply prejudicial to our national interest. Nor, indeed, is that the consequence of the general election, which was not, in all conscience, a great triumph for the Conservative Party. From time to time, one has to put one’s assessment of the national interest before any other consideration, most particularly before one’s assessment of one’s party interests. That happens at various times in one’s career. It happened early in my father’s career, 18 months after the Oxford by-election, when he was compelled to vote against Chamberlain. He was much criticised then. It happened at the end of my career in the House of Commons with regard to the second Iraq war, which I deeply deplored. I helped to craft the anti-war Motion and acted as a Teller to make sure that Motion was voted on. Both of us were criticised at the time, but I am bound to say that those criticisms have not survived the historical experiences that we have all seen.

[Lord Robathan (Con)]

I agree with my noble friend entirely about putting the country before party. He mentioned that nobody had said that we must leave the customs union and single market, but I recall very well that David Cameron—who I rate enormously—George Osborne and Michael Gove, from different sides, said that we must leave not only the single market but the customs union if we voted to leave.

[Viscount Hailsham]

It is the business of Parliament to form a judgment. We will come to other debates fairly soon—in the next group of amendments—that intend to give Parliament the decisive say. That is our function and we must not shelter behind constitutional niceties in order to refrain from doing our duty. I will certainly do whatever I can to ensure that we remain as close as possible to the customs union—and if I could, I would also frustrate the policy of Brexit.

--- Later in debate ---

[Viscount Hailsham]

My Lords, the noble Lord concluded his remarks by saying, effectively, that it should be Parliament that decides the terms. I am wholeheartedly in favour of that. It is an essential part of representative democracy, by which I mean that Parliament, at the end of the day, should be in a position to determine whether the terms that have been negotiated are acceptable, whether the absence of terms is acceptable, whether no deal is acceptable or whether we should remain in the European Union. It is Parliament, not the Executive, that should make that decision.

The amendments that have been tabled by the noble Lords, Lord Adonis and Lord Hain—it is remarkable that I find myself in agreement with the noble Lord, having been in disagreement with him for, I suppose, 25 years or so—are absolutely right. Give Parliament the power to determine the exit date and you greatly reinforce the control that Parliament has as to the outcome.

[Lord Triesman (Lab)]

My Lords, I want to make clear my unequivocal support for the last three speeches. The critical issue that my noble friend Lord Adonis raised on the interplay between the various clauses that deal with the timing and the possibilities of how that could go wrong and the points made by my noble friend Lord Hain and also the noble Viscount, Lord Hailsham, on the sovereignty of Parliament seem to me to be right at the very heart of what the whole process in this House is about. It is either about us assuming the responsibilities that we are supposed to have and display, or it is about giving Ministers what they have plainly wanted throughout, which is the ability to take decisions irrespective of what Parliament might wish. I hope that Ministers will not be tedious enough to get up and deny that this is what they have been trying to do. At every key stage of this process, whether in front of the Supreme Court or elsewhere, it has been essential to force out of the Government an understanding of the role of Parliament and that Parliament will not be set aside.

Like everybody else, I have of course thought hard about why anybody would put a hard date into a clause of a Bill of this kind. Why would you do it? The answer is that it is a party management issue—and only a party management issue. I am sure that many noble Lords on the Government’s side of the House will recognise that there are costs and disadvantages alongside what they might regard as advantages in taking the steps that they have taken. But the advantage they perceive—which seems to outweigh everything else—is that they can say with conviction to the people who are determined that we leave, crash out, or go any which way out of the European Union that they have set a hard date and have in some sense given certainty by virtue of that. I believe—and I think in this debate the House overall is likely to believe—that the complexities with which this country and this Parliament are faced in trying to deal with this absolutely massive constitutional, economic, security and every other kind of issue means that the setting of a hard date is about as arbitrary a thing as you could conceivably do in the circumstances.

In his response to the last debate, which I regret I found very limited, the noble Lord, Lord Callanan, said of a number of the amendments that they required reports to be made and the dates for many of those reports were arbitrary. There could scarcely be a more arbitrary date than this date, when almost nothing has been learned so far about the Government’s intentions and when there is absolutely no certainty that we will learn any more about those intentions. The fact is that setting a date makes it more or less impossible to conceive of all the different elements being drawn together with sufficient coherence for any of us to exercise that final act of parliamentary authority that we have all been promised.

I recall just three, four or perhaps five weeks ago, the noble Lord, Lord Heseltine, spoke on industrial strategy. He made the telling point that, whenever we deal with people from other countries who have strong industrial strategies, strong industrial histories and a great deal of success in all those, we go about it believing that our native wit and wisdom is so superior to all of them that we can constantly get exactly what we want from them and they will never have a presentable argument to put to us. The noble Lord, Lord Heseltine, quite rightly said that if you look at the countries where we tend to take that view—Germany, Japan, China now and the United States—you come across people who are extremely competent at developing industries and strategies, who have views and will argue for those views and who may very well prevail. In this discussion about what future trade will be like, those arguments will be displayed with great ability and, I have no doubt, will not be the pushover that many on the Government Benches seem to think they will be.

I suspect that one argument that will be made about having a hard date is that it focuses negotiation and is a means of drawing a negotiation to some sort of conclusion. I have said before in your Lordships’ House—and I do not say it to cause offence—that my experience is that, by and large, politicians are not the best negotiators that you ever come across. Many of us have spent parts of our lives as trade union negotiators or general secretaries of trade unions, have done negotiation in government, in the Foreign Office—in my case—and so on or have spent a great deal of their lives negotiating in business and in industry. I say without any doubt in my mind that if I wanted to make my life more difficult in any negotiation, I would say, “Here is the deadline”, and let everybody else stretch me out across the rack that I had made for myself, because that would be the easiest thing that they could conceivably do—and they will do it. If you are in a position of enormous strength, I guess you could say, “Well, we have set a date, we are going to push everybody else along”. But if you are not in a position of enormous strength and if, peradventure, you are in a position of enormous weakness, everybody else will take the maximum possible advantage and they will succeed.

I have heard some of the comments made by others who have business experience, and I draw attention to my entries in the register as well. In business, I have never once seen the weaker party in a negotiation have any advantage out of a fixed deadline. If we ever needed to learn that in spades, we would look at what is happening in Northern Ireland now and the constant setting of deadlines—which has happened in the past—only to find that the people of violence, or the people who have been prepared to allow people of violence to push the envelope further, have always been those who took the greatest advantage of it and made it more or less impossible for anybody else to make real progress.

I hope that we will not trap ourselves in that way. These amendments give us a means of not trapping us in that way, and I urge all noble Lords to give us the best chance we can have, rather than the worst.

Brexit: Impact on Young People

Viscount Hailsham Excerpts

Monday 11th September 2017 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, the noble Earl raises a vital question, because the value of international exchange and collaboration in education and training is a vital part of our vision for the UK as a global nation. It is about the future of our young people. Erasmus, which celebrates its 30th anniversary this year, is an example of the European programmes in which we might well want to participate. We will consider that as part of the negotiation. There are other schemes, too, in respect of which we need to look carefully at how we might participate after we leave the European Union.

[Viscount Hailsham (Con)]

Does my noble friend agree that we are unlikely to make much progress on these matters until we get some resolution on debt? In that context, will she tell this House the extent to which the problem is about legality and the extent to which it is about quantum? If it is about legality, have we given serious consideration to arbitration? If it is about quantum, have we given serious consideration to mediation?

[Baroness Anelay of St Johns]

My Lords, regarding debt, I assume that my noble friend is not harking back to the previous Question but looking forward to the negotiations on the liabilities the EU owes to this country—and we recognise there will be duties that we owe to the EU, whether they be based in law or indeed morally. A lot of thought has been given to this issue and I have answered questions on it recently. About 10 days ago, the UK negotiators gave a three-and-a-half hour presentation to the EU negotiators, examining each and every part of the directives and treaties the EU put forward as a list of references, without explaining their application to the UK’s liability. So we are deeply involved in examining wherein lay the duties, each way, to each other.