European Union (Withdrawal) (No. 6) Bill

Baroness Deech Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords—

[Baroness Deech (CB)]

My Lords—

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[Baroness Deech]

My Lords, I want to make two brief points, one of which is directly concerned with the Bill, from which we have been drifting somewhat. The speech by the noble Lord, Lord Hain, made a compelling case for the unification of Ireland—but that may be for another day—and that the effect of terrorism seems to have achieved what the terrorists wanted.

Turning to the Bill, it does not answer the question of what the situation will be if there is still no deal by the end of January. Will the extension be continued? Nothing in the Bill prevents the continuation of extensions, months after months, years after years—nothing at all. It is an eternal Bill, an ongoing loop of requests for extensions. It also does not answer the question of what our response will be if Europe grants an extension but subject to conditions. I am sure they will be tempted to add conditions to do with extra payments, losing votes, residence, immigration, tax and so on. There is no answer in the Bill at all.

The only bright thing I see in this Bill, which I regard otherwise as a moment of great national humiliation, is called the Kinnock amendment. I have not seen it in the Bill, but I have read that, somehow, an amendment put in by the MP Stephen Kinnock would allow Mrs May’s withdrawal agreement to return. I would put money on that agreement coming back, sooner or later, maybe with a tweak or two. In a fit, either of exhaustion or realism, that Bill will go through. It may be that history will say that there was a woman, St Theresa of Maidenhead, who laid down her political life to achieve an agreement. If that happens, much of the last three years will have been wasted. I am not the only one putting money on it coming back, as it may be the only solution.

The right reverend Prelate raised the notion of vision. People often talk about the vision of Britain after Brexit. I ask what the European vision is. If this had been put before the public three years ago, the outcome might have been different. I have been looking for a European vision for more than 25 years, since I decided that I did not want any part of it. The only answer has ever been more union, more Europe, marching on. Foreign policy has been raised. It has made us weaker. What is the European attitude towards Iran, Russia, China or the Middle East? We get division, hesitation and some countries that are beholden to Russia, one way or another, because of gas or their former existence under the Soviet shadow.

[Lord Hannay of Chiswick]

The noble Baroness asked some questions about the European attitude. The European attitude towards Iran is clear: it wishes to sustain the joint agreement, which stops Iran developing nuclear weapons, and to ease sanctions on Iran. Its position on Russia is clear: it intends to maintain sanctions against Russia, because of its interference in Ukraine and seizure of Crimea. The attitude towards China is clear: the European Union believes that many Chinese trade practices are wrong and need to change. On the Middle East, it is clear that we have supported a two-state solution ever since the noble Lord, Lord Carrington, persuaded the European Union to take it up in 1980. Is that enough?

[Baroness Deech]

The account of the noble Lord, Lord Hannay, expresses exactly the failure to which I refer. Not one of these so-called attitudes has paid off, in the least. Our foreign policy, on our own, has been and will in the future be much more successful.

[Noble Lords]

Oh!

[Baroness Deech]

There was genocide in Kosovo and nothing was done by Europe. Crimea was taken over and nothing was done by Europe. Europe is not paying its subventions to NATO.

Then we look further into Europe, which is much vaunted for its human rights. In Catalonia, strivers for independence are in prison. Poland lacks judicial independence and freedom of speech and refuses to take any except Christian migrants. Italy is chaotic. Greece has been driven into poverty, and there is youth unemployment in Spain and Portugal. In Germany and many other countries, the right wing is on the rise. In France, the gilets jaunes are an expression of a much deeper malaise. French security is an oxymoron, as is Belgian intelligence. I will be happy for Hansard to record my deep fears about the future of the European Union because empires—it was a Franco-German empire and is now just a German empire—end like this, with too much power in the middle and too much unhappiness on the periphery, and the push-back gives rise to the extremism which we see rising around Europe and which is lapping at our ankles now.

On that count, I think that our membership cannot but be something of a record of failure to stem what has happened in Europe. I wish the other 27 well in future, but if I were a citizen of one of the countries I have just mentioned, I would feel very fearful for my future welfare. I hope that we can get some answers from the Benches opposite about what the Bill will do to prevent the eternal burden of membership of the European Union.

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[Lord Mandelson]

Nor am I. I am not so sure that we should just push them all to one side as though they have absolutely no potential whatever. That is not my view. My view is that they are not realisable in the foreseeable future and that, in the meantime, we would put the Good Friday agreement and the peace process in Northern Ireland in great jeopardy in a way that would be unjustified and unforgivable. There is a very interesting discussion to be had about the future. It depends on certain modalities, technology and related approaches that have potential—I fully accept that—but they are not for now; in my view, they are for the future.

There is not only the obvious economic, business and commercial argument to be had concerning people’s jobs and livelihoods that are at stake; in my view, there is also a very strong democratic argument to which we should attach great importance in our consideration of this Bill. Quite simply, it is that there was no mandate from the 2016 referendum for a no-deal Brexit. I know that people will say that it was not explicitly ruled out, but to all intents and purposes it was ruled out by the fact that nobody referred to it, nobody explained it, nobody justified it and nobody set out the arguments for it. Not one of the advocates of the leave campaign ever entertained the idea that this would be the outcome of our leaving the European Union.

Such a possibility was almost literally airbrushed out of the picture by the promises that were made by the advocates of the leave campaign—that getting a deal would be “the easiest in history”. Plus, there was a later guarantee—I remember that “guarantee” was the word used by No. 10 in repeating what the then Brexit Secretary, David Davis, had said. The precise words used were that we would have the “exact same trade benefits” after we left the European Union. Not only has that promise of the easiest trade deal in history turned out to be wrong and unfulfillable but the exact same trade benefits will, as we know, be nothing of the kind. They cannot be anything of the kind. We will sustain frictionless trade that is exactly the same as the trade benefits that we have at the moment only if, at the very least, we stay in a customs union with the European Union and fully in the single market. That is the only way in which those promises that were made—that guarantee put forward by No. 10 —could possibly be redeemed, yet it is firmly, consistently and explicitly excluded by the Government.

[Baroness Deech]

I have a point of order about the non-envisioning of a no deal. Of course it was not raised at the time. First, Article 50 mandates that the EU shall negotiate a treaty, which it has failed to do. Secondly, it was never envisaged that the remainers would fight this all the way along for several years. Thirdly, the agreement that we talked about in a broad sense and was mentioned at the time was to do with trade. The actual withdrawal agreement, when we get to it, is about much more than trade. In that sense, it is perfectly understandable that there was no explicit discussion of no deal.

[Lord Mandelson]

I do not remember any of those intricacies, highways and byways being set out by anyone at the time or since—but, of course, the House will be interested in what the noble Baroness has to say.

The fact that any possibility of maintaining frictionless trade has been explicitly excluded by the Government is extremely serious for the manufacturing sector in this country and the long-term health of our economy. I do not see and cannot understand how, given the nature of just-in-time, sophisticated manufacturing supply chains and the way in which they operate between the UK and the continent, it will be possible for Japanese car companies or Airbus or any significant manufacturing enterprise to sustain production in Britain in the medium term.

That does not mean to say that they are all going to pull stumps, shut the doors and pull the shutters down and leave the day after tomorrow. Of course they are not, and any sense that they might is an absurd piece of hyperbole. However, over time—by which I mean between five and 10 years and probably on the shorter end of that spectrum—these great manufacturing companies are going to have to make new arrangements. They are going to have to move production in a way that enables them to secure continuity of their supply chains and the frictionless trade that they will no longer have when sustaining production in this country.

Let us not go back over all the customs union and single market arguments. I do not know what has happened to the Kinnock amendment and his and his colleagues’ advocacy of Norway. All I would say is that it would appear that there is no political possibility of those options being reintroduced or attracting and sustaining a majority, certainly in the other House. Let us acknowledge that they would in any case raise issues of regulatory dependence by this country on the European Union, while having no say in the making of those regulations.

I do not dismiss that. Having been on both sides of this as a UK Business Secretary and a member of the European Commission, I take rather seriously the idea that we in this country would simply be on the receiving end of laws and regulations made in Brussels over which we would have been able to express no view. There are real issues involved here and I acknowledge them.

In conclusion, the central point—and the right reverend Prelate the Bishop of Leeds made it earlier—is that the referendum in 2016 was an in/out one. It was an in-principle referendum. It was not about the how and the terms on which we would leave the European Union. No hint of those terms was spelled out between a soft and a hard Brexit, and of course there was absolutely no indication of leaving without n deal at all.

So now, as we find ourselves, at the behest of the new Prime Minister, hurtling towards a no-deal exit, I believe that the Government should accept that this really cannot and should not happen without the express approval either of Parliament or the public. I will wind up, if I may—it is nice to see the Government Front Bench intervening in a debate at long last. Here is my further point in conclusion. I do not believe that the express approval of the British public for how we leave the European Union can possibly be expressed by means of a general election.

European Union (Withdrawal) (No. 6) Bill

Baroness Deech Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

Moved by

[Baroness Deech]

2: Clause 3, page 3, line 6, at end insert “unless the offer is anything other than an unconditional extension of time, in which case the procedure set out in subsections (2) and (3) applies.”

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[Baroness Deech (CB)]

My Lords, this is a straightforward technical amendment to plug a gap which I noticed as soon as the Bill was published; indeed, I referred to it in my speech on it. As we know, the Bill mandates the Prime Minister to seek an extension to the withdrawal date provided for in Article 50 in the form of the letter in the Schedule. It goes beyond the earlier withdrawal Bill, known as the Cooper-Letwin Bill, of April. That Bill required the Prime Minister of the day to seek, but not necessarily to achieve, an agreement about extension. Mrs May could have picked up the phone, asked Monsieur Barnier for an extension and then said that on reflection she did not want it. Of course, that is not what happened.

That loophole is closed by the Bill in Clause 3(1) to (3). Subsection (1) says that, if the European Council agrees an extension to 31 January 2020, the Prime Minister “must, immediately” agree to the proposed extension, without qualification or consultation. But subsection (2) says that if “a date other than” 31 January is offered, the Prime Minister may not have to agree; subsection (3) says that if the Commons decided to disapprove the extension offer, the UK does not have to agree it.

I do not know why the two are treated differently. I note that the Commons is given this opportunity to consider the offer if an extension is granted that is not 31 January; it could be 30 January, or December next. But if the extension is 31 January, this is what might occur. Suppose the European Union agrees to an extension to 31 January but attaches a condition—for example, the holding of a second referendum, a payment of billions, settling issues to do with migration, or even a new Prime Minister. The Prime Minister has to accept it immediately, as set out in line 4 on page 3—no consultation, no Commons approval, unlike the provision in subsection (2). My amendment adds to the arrangement contemplated in subsection (1) the same requirement that the Commons should have two days to consider and accept or reject any condition attached. That must be right. I imagine the difference was an oversight, unless the proponents can explain the discrepancy.

I also note, but have not attempted to amend, a difficulty with the meaning of “two days” in subsection (2) and “two calendar days” in subsection (3). They are different—why? Imagine that the European Union offers an extension which is not to 31 January and that this is offered in early October or during some period when Parliament is not sitting. Is Parliament to be summoned to agree the question, or does “two days” mean two sitting days—indeed “Lords sitting days”, whatever they are—as set out in Clause 1? Might Parliament be prorogued to sidestep these time provisions? It is not clear. What is clear is that the Commons should have some power, for two days, to scrutinise and approve any offer of an extension to 31 January in exactly the same way as it is empowered so to do if the date were to be 1 February. That is the purpose of my amendment. I beg to move.

[Viscount Hailsham]

I will make a point that I made in the previous debate in the hope that the Government will respond. I hope they will also respond to this amendment. Clause 3(1) is premised on the basis that the European Council decides to agree an extension. So long as the United Kingdom is a member of the European Union, in respect of a unanimous decision, it is at least possible in theory for the United Kingdom to oppose the extension, despite having applied for one. I seek an assurance from the Government that they will not seek to oppose an extension for which they have applied.

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[Lord Rooker]

That being the entire point, I invite the noble Baroness to withdraw her amendment.

[Baroness Deech]

My Lords, much more heavy weather has been made of this than I intended. I have a couple of opening comments: it is a pleasure to see the noble Baroness, Lady Falkner, over here, and I say to the noble Lord, Lord Kerr, that those who draft law are not thereafter charged with interpreting it. Once they have launched their draft, it is over to others to interpret it. I do not claim by any means to be a European lawyer—far from it—but my point is very simple: if an extension is granted to 30 January, the Commons gets two days to consider it. If an extension is granted to 31 January, it gets no time at all. I have still heard no reason or sense for why that should be so, and I remain convinced that this was some drafting oversight.

No one has clarified either whether the “two days” are sitting days or calendar days. What if an offer comes at the weekend, during the Christmas Recess or some time when we are not here? Since the lawyers, both the noble and learned Lords in this House and those who are clearly just as learned but are mere QCs, have different opinions about this, it is quite possible that something that is a bit tricky may come our way at a time when we are not sitting or when the Act provides no two-day pause for the Commons. So either the Commons should have two days to consider anything or it should not have two days at all. I have heard no logical answer to that.

I sense that it is the will of the House that I withdraw the amendment. However, before Report, I expect to hear some sense from someone. I do not know who gave the draftsmen their orders. I have not yet heard a sensible reason why an extension to 30 January gets two days’ consideration but an extension to 31 January does not.

[Lord Wallace of Tankerness (LD)]

Perhaps I may try to give an explanation. It is because Clause 3(1) specifically states,

“at 11.00pm on 31 January 2020”.

By definition, that would have been passed by the House of Commons, as indeed it did on Wednesday this week. Therefore, it does not really need two days to agree something that it has already agreed to and put in statute.

[Baroness Deech]

I understand that point, but, given that there has been enough disagreement to worry me about what the European Union might say—others who know much more than me have expressed different opinions—and we are left with this “two days” definition and nobody knows what it means, I think that there is a real legal problem. I do not know who drafted it; I do not know who gave the orders; we have not really heard a logical answer. I beg leave to withdraw the amendment, but I expect someone to give a proper explanation at some stage during the discussion, because we are in a bit of a legal pickle over that provision.

Some Lords objected to the request for leave to withdraw the amendment, so it was not granted.