European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019

Baroness Ludford Excerpts

Wednesday 27th March 2019 Lords Chamber

[The Duke of Wellington (Con)]

My Lords, I cannot resist rising to support this statutory instrument. As the noble Baroness, Lady Hayter, has already mentioned, last May a very sensible cross-party amendment was carried convincingly by this House, tabled by myself, the noble Baroness, and the noble Lords, Lord Newby and Lord Hannay. Therefore it had complete cross-party support. It was very unfortunate that the Government did not accept it. It was carried here but rejected in the other place.

At the time, the Government stated that they had no intention, under any circumstances, of seeking an extension. However, when first tabled in the other place, the original Bill—subsequently an Act—did not include a date. I fear that the date was only inserted at the behest of the European Research Group. We in this House argued that there was no point in putting in a date when it might have to be changed in circumstances which none of us could, at that moment, foresee. Now that the Government have agreed an extension with the European Union, clearly this statutory instrument must be passed. The Minister has already explained the legal chaos which would be created, now that it is agreed with the European Union, if the exit date were not to be changed in our domestic Act of Parliament. I hope the Minister will accept that point when he winds up.

Although the noble Baroness, Lady Hayter, was a co-signatory with me, I very much regret that I am unable to support her amendment to the Motion. We all have our views about the way the negotiations have been handled and the excessive delays which have occurred, but at this point, we really need resolution, and we must pass the statutory instrument. I hope the House of Commons will, in the next few days, reach an agreed position. If I was there, I would still support the Prime Minister’s deal. Should that not carry, I hope some alternative proposal comes forward. At this moment, we must have clarity for our citizens and our businesses, and, in my opinion, we must support this statutory instrument.

[Baroness Ludford (LD)]

My Lords, we on these Benches support this statutory instrument as a necessary measure to prevent confusion and uncertainty, although, as the noble Baroness, Lady Hayter, and noble Duke, the Duke of Wellington, have said, if the Government had listened to this House when it advised against putting in a fixed date, life would have been considerably easier. Both 29 March and the constant reiteration of the commitment to no extension were ideological fixations. Now, two of those are down out of three. I am looking forward to a Government U-turn on a people’s vote. That would make the trio.

We are sympathetic to the sentiments in the amendment in the name of the noble Baroness, Lady Hayter. I cannot improve upon what she said about the unfortunate way in which the negotiations have been conducted. This is not the place to go on at length about that, but the mess we are now in was predictable and, indeed, predicted. We agree that it would be very odd if the Government said that while they felt instructed by the people, they defied the will of the House of Commons, and indeed, as we have had cause to say before, they refuse to get an update on the will of the people from 2016—which, of course, amounted to only 37% of the people. All the indications are that views have evolved.

The Government have allowed themselves multiple bites at the cherry, as MPs have, but will not allow the people even one chance to rethink. That is very arrogant. We on these Benches would of course want to add to the amendment of the noble Baroness, Lady Hayter, by ensuring that whatever version of Brexit comes out as the top preference of MPs should then be put back to the people, for them to have the final say on whether they support it or wish to opt to remain.

The noble Lord, Lord Forsyth, who is having some fun today, expressed himself astonished yesterday that,

“the Prime Minister can go to a meeting in Brussels and, suddenly, what is in statute is completely irrelevant”.—[Official Report, 26/3/19; col. 1719.]

It is not quite like that. MPs voted for an extension to Article 50 and, for once, the Prime Minister did what the House of Commons told her to. She requested an extension, which became the European Council decision of 22 March. Since we are therefore still in the EU until at least 12 April, EU law is supreme over domestic law. That is how it works. I felt an intervention coming somehow.

[Lord Forsyth of Drumlean]

The point I was making was that the Prime Minister went to Brussels and made a request, which was refused. She was offered two dates and signed away the effect of the legislation without coming back to Parliament and asking it to express a view. I am sure the noble Baroness agrees that that is an extraordinary constitutional position.

[Baroness Ludford]

I think the noble Lord’s quarrel is with the Prime Minister.

[Lord Forsyth of Drumlean]

Yes.

[Baroness Ludford]

It is that, rather than with anything I have said.

I noted that while on Monday there was an insistence from the government Benches that this decision by the European Council represented international law, at least by yesterday things had moved on somewhat when the noble Baroness the Leader of the House referred to EU and international law. I am, however, puzzled by her insistence that the European Council decision and the UK’s agreement to it constitutes a binding agreement in EU and international law. It seems to me that that decision is simply a binding legal act under EU law, to which the UK is now and at least until 12 April subject. It just seems to be difficult for the Government to straightforwardly acknowledge this, presumably for political reasons.

I am sure that the noble Lord, Lord Pannick, will speak to the issue that he raised yesterday about the legality of the two alternative exit dates and I will leave that to him. From these Benches, we can accept the convenience of needing only one statutory instrument, and not potentially two, to cover both the scenarios envisaged in the European Council decision.

Finally, I want to ask about the position on the European Communities Act. I cannot remember whether I asked this yesterday or the day before. The Explanatory Memorandum to the present regulations says:

‘“Exit day’ is the day by reference to which provisions of the 2018 Act, including the repeal of the European Communities Act 1972 … take effect or come into force”,


but that is not my understanding. The European Union (Withdrawal) Act says that the repeal of the European Communities Act takes effect on exit day. My understanding is that an SI is needed to bring that into force; indeed, the briefing from the Library says:

“This provision of the EUWA”—


namely, the repeal of the European Communities Act—

“has not yet been brought into force”.

So even beyond exit day, unless there is an SI to bring into force the repeal of the ECA, the ECA will continue. Can someone explain how that interacts with these regulations? Even if you change exit day, do you still need an SI to bring in the repeal of the European Communities Act? I look forward to the clarification which I am sure the noble and learned Lord, Lord Keen of Elie, who is looking impatient, will be able to give me.

[Lord Pannick]

My Lords, I support the Motion in the name of the noble Lord, Lord Callanan, and I thank him for addressing the legal question I raised yesterday. I am satisfied that these regulations are valid; the legal issue is whether exit day is specified in the statutory instrument when it refers to two possible dates. I agree that that is so: it is specified, and for this reason. It seems to me that the purpose of the power to amend the date of our exit, as expressly stated in Section 20(4)(a) of the 2018 Act, is to ensure that domestic law on exit day is consistent with our treaty obligations. This SI accurately implements in domestic law the current treaty obligations in the light of the extension of the Article 50 period. Unhappily, that still involves more than one possibility as to the future, and the SI accurately reflects the reality under EU law.

There is a risk that a court might take a different view on the validity of the SI; I would not expect it to do so. I am, however, surprised that Ministers did not adopt the simpler, risk-free option of specifying 12 April as exit day, since they have ample powers further to amend exit day if appropriate. That is especially so when there is a third possibility recognised under the EU decision to which the SI refers. The EU decision says that if the withdrawal agreement is not approved by the House of Commons by this Friday, the Article 50 period is extended until 12 April. It adds:

“In that event, the United Kingdom will indicate a way forward before 12 April 2019 for consideration by the European Council”.


If that occurs, and if agreement is then reached on the way forward, it may involve an exit day different from either 12 April or 22 May: that, of course, would require another SI.

I understand that the noble and learned Lord, the Advocate-General for Scotland, will be replying to this debate for the Government. I have a question for him which builds on the question put at the end of her speech by the noble Baroness, Lady Ludford. As a matter of domestic law, exit day is highly significant under the 2018 Act for various purposes, but one of the central functions of exit day is given accurately in paragraph 6.5 of the Explanatory Memorandum:

“Section 1 of the 2018 Act repeals the European Communities Act 1972 on ‘exit day’, whilst the saving and incorporation of EU law into domestic law (known as “retained EU law”) … take effect on and after ‘exit day’”.


Various provisions of the 2018 Act were brought into force under Section 25 of that Act when it was passed. Those provisions include Section 20, which defines exit day and confers the power exercised in this statutory instrument to amend exit day. Also commenced and brought into force when the 2018 Act was passed were Sections 8 to 11 and other provisions which confer powers on Ministers to make regulations such as those we have been scrutinising in recent weeks. There have also been more recent commencement regulations, such as SI 808/2018, which provide for the bringing into force of other provisions of the 2018 Act.

--- Later in debate ---

[Baroness Ludford]

Does the noble Lord accept that the Prime Minister went to Brussels because the House of Commons, which is accountable to the people, voted for an extension?

[Lord Forsyth of Drumlean]

Indeed, it suggested to, or instructed, my noble friend the Prime Minister to go to Brussels and ask for an extension, but we got two dates and diktat about what we had to do about them. That is a completely different proposition. I do not suppose that we will get another coalition Government but I must say something to the Opposition Front Benches, which may take pleasure in what is happening in the other place. A group of Conservative MPs has, extraordinarily, handed power to Jeremy Corbyn and the Scottish nationalists and worked with the Speaker of the House of Commons, in breach of convention. Today, at the other end of the building, the Executive is the House of Commons. Indeed, such is its enthusiasm for this new state of affairs that it has extended this situation until Monday—and there is nothing to stop it doing so until Tuesday or Wednesday. Moreover, it is reported that that same Speaker—again, against convention—is preventing the Prime Minister bringing her deal before the House of Commons again because it has been considered before, yet the Cooper-Boles amendment gets presented again and again. I rest my case: we find ourselves in an unpleasant place, which has come about because of a conspiracy by remainers.

Brexit: Petition to Revoke Article 50 Notification

Baroness Ludford Excerpts

Tuesday 26th March 2019 Lords Chamber

[Lord Callanan]

Of course we respect everybody who signed the petition. It is indeed an impressive number of people, but the noble Baroness was a member of the Blair Government when 750,000 people marched against the Iraq war. We know the result of that. In this country, we have government by the ballot box and by Act of Parliament.

[Baroness Ludford (LD)]

My Lords, how can the Government keep parroting that the will of the people is the same as it was three years ago when the electorate has changed, nearly 7 million people expressed themselves on the march, the petition wants to stop Brexit and polls consistently show a remain majority? If the Government really respected the people, would they not ask them for an update on their views?

[Lord Callanan]

We have explored this issue many times in response to the noble Baroness. We respect the result of the referendum, which was the largest participatory democratic exercise ever carried out in this country, and we are committed to implementing that result.

Brexit

Baroness Ludford Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I intend to be relatively brief. I hope I will be, not just because it is getting late, or because I have nothing new to say—the noble and learned Lord, Lord Keen of Elie, teased me for saying that in our last debate—but because a lot has changed. It would take me a very long time to get out of my system what I really feel about the incompetent and partisan way that this Government have behaved in the last three years—with their red lines, their appeal only to leave voters, and their prioritising of unity within the Tory party, which does not seem to have been a great success. I agree with the noble Lord, Lord Ricketts, who said that all of this has brought us to a state of national humiliation. We are in big trouble, as the noble Lord, Lord Trevethin and Oaksey, said.

One reason that I do not want to go on at too much length is because I agree with so many who spoke earlier in this debate, particularly the noble Lords, Lord Kerr, Lord Lord Hannay, Lord Kerslake and Lord Ricketts, and the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Altmann. I was struck particularly by the mention of patriotism and of the colleagues of the father of the noble Lord, Lord Kerslake. It reminded me of the 97 year-old veteran who was at the march on Saturday. If I recall correctly, one of his tasks in the war was digging people out of the bomb-hit city of Coventry, but his conclusion from his wartime experience and the medals that he was awarded was to say “never again”. We must have the European Union to build peace, security and prosperity.

I agree with the noble Lord, Lord Bridges of Headley, that fear of splitting the Conservative Party has been the guiding force over the last three years. Obviously, not being in the Tory party, I can only empathise, rather than share the pain that must be felt by relatively reasonable people within that party. The complete loss of Cabinet collective responsibility has been the most dismaying. The noble Lord, Lord Adonis, rightly highlighted the existence of a party within a party—the ERG. Obviously, if we had a decent electoral system, those people would have to stand under their own banner and not that of the Conservative Party.

As the noble Lord, Lord Bilimoria, highlighted, Saturday was a great day. It was good-humoured and well behaved; there was not a single incident that required the attention of the police, just like in October. Those commentators who said the mood was slightly different from that in October were probably right. It was very serious and determined, as well as enjoyable.

I was interested to hear Mark Field MP, who is a Minister, say that he could envisage supporting the revocation of Article 50. Perhaps that has to do with the high level of support in his constituency for the petition. Cleverer people than I have analysed those figures for all the constituencies; no doubt, there will be some very thoughtful MPs looking at those figures. In many cases, the number of those who signed the petition is greater than the majority that MPs enjoy.

The Prime Minister is showing contempt for both people and Parliament. She keeps invoking the will of the people but refuses to check whether, nearly three years on, with 1 million people marching, 5.5 million people petitioning to revoke Article 50, and polls showing a majority support for remain, their views have evolved. She allows herself so many bites at the cherry but she will not allow voters a single reassessment, which is quite arrogant. She also said she will take no notice of indicative votes, which continues her high-handed attitude towards the House of Commons. The noble Viscount, Lord Hailsham, and as my noble friend Lady Smith of Newnham both stressed that the 2016 referendum result is not a mandate for what is happening now on Brexit. No one could possibly have wanted to arrive in this situation. It should not be a problem to ask voters whether this still represents their views. Surely the people’s vote has to be between whatever deal MPs agree and remain. To those who say that no deal would need to be on the ballot paper, I ask this: what is no deal? What does it consist of? How do you describe it? I really do not think that that is a runner.

If Brexiters are so sure that leave would still win—and I agree with the noble Lord, Lord Green of Deddington, that if it did, that would be the end of it, perhaps for a generation—they should have no problem holding another referendum. What are they afraid of? We need a long enough extension of Article 50—for four or five months, say—to allow a people’s vote.

I believe that a lot of leave voters were protesting against the system in 2016, and most of that protest had nothing whatever to do with the EU. I do not deny that immigration was a factor, although three years on it has become less of a factor. But I say to the noble Lord, Lord Green, that any consideration of continuing free movement must be looked at in the round, along with the fact that British citizens are being denied free movement and the opportunities they expected to have, particularly young people and those who wanted to retire to, for example, France or Spain. It is a two-way street and we need to look at it entirely in the round, as well as reflecting the huge contribution that EU citizens make to this country, not just economically but socially and culturally.

I agree with the noble Lord, Lord Hennessy, that we need to focus on post Brexit, but we might define that term differently. I mean that, even if it is only clinging on to nurse for fear of something worse, we should remain in the EU; I think he means we should exit and then deal with all the other problems. There are so many crucial needs in this country. One of the tragedies of the past three years is how all our energy, capacity and thinking have been taken up by Brexit. I feel that myself. When I left the European Parliament, I was really hoping to do things other than EU affairs—I do have other interests, as it happens—but this has been a straitjacket from which it has been difficult to escape. But of course we will have less money to pursue those other things, whether it is social care, decent housing, better skills training or youth services. Talk to anybody in the area of knife crime and you will learn that it is not just the police but the lack of money for schools and youth services which is totally undermining the ability to deal with that terrible problem. By post Brexit, therefore, I mean once the country has liberated itself from this disastrous exercise.

I apologise that I have not been as brief as I thought I would be. I am grateful that the Prime Minister confirmed that the extension knocks out the 29 March date. She may be right that there would be legal confusion about the UK’s ability to implement EU law, but we would still be in the EU because of the European Council decision on the extension. Can the Minister confirm that in fact the repeal of the European Communities Act under Section 1 of the EU withdrawal Act has not been brought into force yet, the same as the repeal of the European Parliamentary Elections Act? An SI is needed for that, and that SI has not gone through, and so the European Communities Act is still in force.

I am also pleased that the Prime Minister’s announcement today, on 25 March, marks the anniversary of the treaty of Rome. There seems to be something significant about this coincidence. Can the Minister clarify the categorisation of the European Council decision as “international law”? Surely it is EU law, unless I have missed something.

Unfortunately, the Prime Minister has not in fact ruled out no deal. I am afraid that that is an illustration of her tendency to be not entirely straight and somewhat manipulative. On one side, she said that no deal had been ruled out but on the other that it had not. She said, “Let me be clear”, then was nothing of the sort. I agree with the noble Viscount, Lord Hailsham, that the noble Lord, Lord Callanan, needs to clarify whether she really meant that no deal could be chosen only by an affirmative process.

The noble Lords, Lord Kerslake and Lord Cormack, reminded us that no deal would have a catastrophic effect. One thinks particularly of people with serious medical conditions such as epilepsy or cancer or who are having dialysis, who are terrified. You see this all the time on social media. Some of them are unable to get their supplies now. What will happen is frightening. It is unbelievable that any Government would impose this fear and anxiety on their citizens.

[Lord Lilley]

Did the noble Baroness not hear me read out the assurance from the Department of Health that there would be no interruption of supplies? Why is she indulging in this disgraceful scaremongering of vulnerable people?

[Baroness Ludford]

I follow people who report their own experience of going to the pharmacist and finding already that they cannot get their supplies. I am sorry, but whatever assurances the Government give, I am personally at the point where I believe the individual patients rather than the Government.

We need a longer extension to be able to hold a people’s vote. If we have to participate in European elections, that is fine with these Benches. I would not be entirely surprised if some legal political fix will eventually be found because everyone is ignoring the opinion from the European Parliament legal service that says that we must hold European Parliament elections but if we do not it will not invalidate the legality of the new European Parliament. That seems a straw in the wind that might point to a different solution. I look forward to the Minister’s answers.

Brexit: No-deal Preparations

Baroness Ludford Excerpts

Wednesday 20th March 2019 Lords Chamber

[Lord Callanan]

Well, of course we have been endeavouring to find a deal acceptable to Parliament. We have spent two years negotiating it. But I repeat that it is the legal default, and until there is another deal in place, or another decision is taken, we will continue to prepare, because that is the responsible thing to do. I remind the Labour Party that it voted against the deal we have negotiated, and so far we have seen no constructive suggestions from the party as to what would replace it. I think Labour has said that it agrees with the withdrawal agreement, while continuing to vote against the deal.

[Baroness Ludford (LD)]

First, can the Minister tell us why the Government are not pursuing the route they said last week that they would follow, notably in the words of the Deputy Prime Minister, Mr Lidington. He said that if Parliament had not agreed the deal by today, a long extension would be sought. Is not the Prime Minister siding with the Brexiters and sticking with her over-the-cliff strategy, rather than trying to avoid it?

Secondly, the Government say that any agreed extension would not change the legal default of leaving the EU without a deal, presumably on 29 March. Surely if there was an extension, we would remain in the EU under EU law. If there was no SI to change the exit date, we might lack a domestic legal framework to give effect to our EU membership obligations. Can the Minister confirm whether my legal understanding is correct that since EU law is supreme over domestic law, we would still be in the EU if there is an extension?

Brexit: Article 50 Period Extension Procedure

Baroness Ludford Excerpts

Monday 18th March 2019 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

Well, I think we all feel rather sorry for the Minister, who has, after all, said again and again that we will leave on 29 March and now knows that we will not—and that is because of the Prime Minister’s failed strategy of running down the clock to get her own way.

We are told that, if the Government are allowed to table the existing deal yet again in the Commons and it wins approval—the Speaker has just suggested that he is not minded to permit a third meaningful vote without a substantial change to the deal; we hear that perhaps we will have to prorogue and then come back—they will apply for an extension to 30 June.

The more likely eventuality is that the Government will fail to get their deal agreed and thus request a longer extension, such that we will need to participate in the European Parliament elections. Given that returning officers must publish notice of the poll by 12 April, with the Government announcing the date beforehand, can the Minister inform the House which date is planned for these elections, whether the Electoral Commission is geared up for this and when purdah will commence?

[Baroness Ludford (LD)]

My Lords, I think the Speaker in the other place will tonight be a national hero for—

[Baroness Goldie (Con)]

This is an Urgent Question; the Minister must respond.

[Lord Callanan]

The noble Baroness stated that we will not leave on 29 March. Of course, she cannot say that definitely. UK law still requires that we do, and any extension—which we have said we will apply for—has to be agreed unanimously by the European Council. She asked about the European elections; I will give her a detailed answer. EU law requires European parliamentary elections to be held between 23 and 26 May, and the new European Parliament will meet on 2 July. For the UK to participate in the elections, notice of the poll must be published by 12 April. This is set out in Schedule 1 of the European Parliamentary Elections Regulations 2004. In advance of this date—in other words, by 11 April—the Government would have to set the date of the poll by making an order under the European Parliamentary Elections Act 2002.

[Baroness Ludford]

My Lords, as I was saying, I think that the Speaker in the other place will tonight be a national hero for stopping this Government prolonging their manipulative games playing and making a mockery of parliamentary sovereignty. Over the weekend we heard attempts by the Attorney-General to claim that Article 62 of the Vienna convention could be invoked to get out of the backstop early and that this was a substantive change. That has been shot down by all good legal opinion.

MPs have already had two votes on Mrs May’s deal, having been permitted to reassess the information on Brexit and update their views. If the Prime Minister had had her way, it would have been three or four votes. Meanwhile, the voters are denied even one opportunity for a rethink. So is it not finally time to allow the people to have the same opportunity for review and reassessment that MPs and the Government are permitting themselves? This weekend a poll showed that almost six in 10—57% of voters—wanted that opportunity.

Any extension sought under Article 50 must be for a democratic purpose, which does not mean only the European Parliament elections. It is as clear as day that the most legitimate purpose must be for a people’s vote, and that the extension sought must be long enough to facilitate the holding of such a vote, with an option to stay in the EU on the ballot paper. It is rumoured that the Government will seek a nine-month extension. Can the Minister confirm whether that is true?

[Lord Callanan]

No, I cannot confirm that. I can also reassure the noble Baroness that we will not be seeking permission to hold another people’s vote. We have already had a people’s vote, and the people voted to leave. We are still committed to implementing the results of that decision.

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

Baroness Ludford Excerpts

Wednesday 27th February 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, we have had an unhappy almost three years of the Tory Government supposedly taking back control, restoring parliamentary sovereignty, launching global Britain and respecting the will of the people. They have not achieved any of those things. “What control?”, you might well ask. The Prime Minister is in fact simply muddling through. She trots out the same tired old mantras and slogans which have been emptied of any meaning. There is a leadership vacuum, her Cabinet is totally divided, and her authority and that of her Government have thoroughly dissipated. The whole Tory outfit is dysfunctional.

Incredibly, they want to inflict that dysfunction on the country, continuing to hold, over 66 million people, the threat of a chaotic, catastrophic no deal which would slash GDP, public spending, jobs and security, while creating new red tape, costing businesses £13 billion, and big new hassles for individuals wanting to travel, which are spelled out in some detail in yesterday’s document. There are not enough adjectives, or at least not enough polite ones, to do justice to the lack of responsibility of the Government.

One commentator wrote this week that it was Nick Timothy who,

“persuaded the prime minister to trigger Article 50 so quickly and drew the red lines that defined the UK’s Brexit negotiating position, with his boss apparently unaware of the consequences of being so disastrously boxed in”.

That rings absolutely true, and as the noble Lord, Lord Kerr, said, alternatives such as the EEA were simply not explored. Has the Prime Minister been admirably determined, ignorantly stubborn or too vain to consult, listen and change course? I tend to the latter conclusion.

Some voters seem to think that no deal means that we stay as we are, in the EU, which seems to account for the high score that no deal gets in polls. But one other factor must be the sheer incredulity that any Government would inflict, or contemplate inflicting, such appalling destruction on their own citizens, let alone a Tory Government who have always asserted their claim to economic competence—I think that was the point made by Nick Boles MP in the Evening Standard the other day.

As for restoring parliamentary sovereignty, we have had three years of Theresa May’s Government trying to boss Parliament around, denying its proper constitutional role, and wasting taxpayers’ money fighting court cases, before kicking and screaming as they had to concede some power over the triggering of Article 50 and the withdrawal process. Even now they are resisting proper parliamentary involvement in trade negotiations. As the noble Lord, Lord Liddle, pointed out, the European Parliament has shown more muscle towards its Executive—the European Commission—than the House of Commons has shown towards its Executive.

A lot of this is the consequence of the excessive power that our defective first past the post voting system gives a British Prime Minister, and whatever happens with Brexit, it will have woken up a lot of people to the fact that the cause of political and constitutional reform is not some dry arcane fancy but a crying need to reflect a diverse population and liberate it from elective dictatorship.

It is now time for Parliament to take control, as I hope it has been doing. The Prime Minister cannot be trusted to put the interests of the country before her own and those of her party. There is a real sense that MPs are finally getting their act together in refusing to let this Government—or indeed the Official Opposition—drive us over a cliff. The Prime Minister has been forced, more or less, to take no deal off the table and to open the prospect of an extension to Article 50, which President Tusk rightly described at the weekend as a “rational solution”. Meanwhile, the leader of the Opposition has been forced, more or less, to concede that a people’s vote is the best way to resolve the impasse.

I very much welcome the prospect that MPs will vote on 14 March to seek an extension. That would be a fitting birthday present for me. As President Macron has said, there needs to be a real purpose to an extension, not more delay and prevarication. Unfortunately, the Prime Minister continues to play tiresome games, such as yesterday when she promised legally binding changes to the backstop. We all know that this does not reflect reality, as my noble friend Lord Campbell of Pittenweem pointed out. The Brady amendment’s purpose of effectively removing the backstop is not going to happen. The Prime Minister insults not only our intelligence but her own, if she thinks we believe that it will.

Similarly, a game of smoke and mirrors is being played about the Government’s position on no deal. The Minister could not tell us how the Government would want their MPs to vote on 13 March, if one takes place. One journalist has—legitimately, in my view—called Mrs May a post-truth Prime Minister, because you never know what to trust in what she says.

Global Britain was always a farcical slogan. We have had more international influence as a leading member of the EU in recent decades than since the height of empire. All that Brexit has achieved is to leave us remarkably friendless. In the UN General Assembly decision to refer the question of sovereignty over Chagos to the International Court of Justice, our EU allies deserted us; whereas, pre-2016, one of the strengths we enjoyed was reliance on their support in multinational fora. I say to the noble Lord, Lord Farmer, that Brexit reduces our national sovereignty.

Global Britain seems, in fact, to consist of making gratuitous insults and silly gestures, by pretending to be more powerful than we are, at enormous cost to our economic well-being. In the last couple of weeks alone, members of the Government have, in various ways, upset Japan, China and Bangladesh. Post-Brexit Britain will not have any trade links at this rate. As the noble Lord, Lord Hannay, said, unilateral abolition of tariffs deprives us of trade negotiating leverage.

The UK spent decades building a strong relationship with Japan as its principal economic partner in Europe, in the expectation that we would be members of the European Union and offer stable policies, including, crucially, seamless access to the European market—the gateway to Europe, as the noble Viscount, Lord Hailsham, put it. It was on this basis that Mrs Thatcher wooed companies such as Honda, Nissan and Toyota. The Government have now comprehensively trashed that relationship with the third-biggest economy in the world, while the EU forges ahead with its new free trade agreement with Japan. Japan was very upset—and made its feelings known—to get a letter from Jeremy Hunt and Liam Fox that told it to get a move on with a UK-Japan trade deal—the one we will need if we crash out on 29 March.

China is meant to be a big new trade opportunity, as the noble Lord, Lord Howell, emphasised, even though EU membership should not have prevented us expanding trade with it. EU partners manage to have a bigger volume of trade with China—and, indeed, India—than we do, so EU membership is clearly not a constraint. Then along comes the Defence Secretary, Gavin Williamson, absurdly vowing to send our aircraft carrier to the South China Sea. There are real issues about Chinese encroachment there, but gunboat diplomacy is not going to solve them.

The latest example is Bangladesh. The Home Secretary decided to revoke Shamima Begum’s British citizenship on the assumption that she would be eligible for Bangladeshi citizenship, but apparently without consulting the Bangladeshi authorities about whether they wanted her as a citizen. They said that they did not, and the British Government thereby rendered her stateless and broke international law in enormously careless fashion. The noble Lord, Lord Anderson of Ipswich, spoke knowledgeably and wisely about that.

Our relationship with our EU partners has hardly fared better. The disdainful way in which many Brexiters have treated the demands of the Good Friday agreement and the position of the Republic of Ireland has been a disgrace. Some of them have hurled absurd insults at Germany. We have given Spain licence to raise problems over Gibraltar and offended east European countries over the treatment of their citizens. Are we supposed to rely on President Trump—a protectionist keen to sell us chlorinated chicken and unreliable on the US NATO guarantee?

The extent of cross-party co-operation and the breaking down of tribal barriers that we have seen recently is very significant. We have seen the formation of the Independent Group, with defections from both the biggest political parties and the demonstration of muscle from some Ministers and shadow Ministers, all displaying that pluralist politics at last has a chance in this country. If this can happen under first past the post, imagine the possibilities for co-operation and common sense if we change the voting system.

To the Prime Minister, the will of the people worthy of respect has a very narrow definition, meaning only those who voted leave. It was amusing that yesterday, the Government stressed that the opinion of the ICJ on Chagos was non-binding, whereas they have treated the result of a non-binding referendum as holy writ. Those who voted remain have been shunned as citizens of nowhere: in effect, non-persons who can be ignored and belittled.

If the Prime Minister really wants to respect the will of the people, she must put her deal to a vote of the people, with an option to remain. That would show real leadership of a type that we have lacked. That is not to second-guess the 2016 referendum, as the noble Lord, Lord Callanan, claimed in opening. It would be the first opportunity to judge the real nature of Brexit. I am hopeful that such a vote will happen and I will win my £5 bet with the noble Lord.

Brexit: Options

Baroness Ludford Excerpts

Monday 18th February 2019 Lords Chamber

[Lord Callanan]

I am sorry to tell the noble Baroness that it is the default legal position. It is what Parliament voted for, it is what the legislation says and we are preparing accordingly. However, of course we do not want to leave with no deal; we want to leave with a deal, which is why we are intensively engaged in discussions to try to produce a solution that is acceptable to Parliament as a whole.

[Baroness Ludford (LD)]

My Lords, the Brexit analyses that the Brexit Select Committee in the other place finally forced the Government to publish showed that Brexit in any form whatever, let alone a chaotic no deal, will be very damaging to the British economy, to the extent of an up to 8% hit to GDP. Will the Government now accept the proposal that is being discussed in the other place—that it would approve the Prime Minister’s deal, whatever that turns out to be, subject to it being put to the people to decide between that and remaining in the EU, which is far superior?

[Lord Callanan]

It will come as no surprise whatever to the noble Baroness to hear me say that, no, we will not. We do not think that another people’s vote is the correct way forward. We have already had a referendum, and we all know its result. I admire the nerve of the Liberals in continuing to pursue this option. I notice that, in the various debates in the House of Commons, they have not put it forward as a subject for a vote; they know very well that there is no majority for it.

EU Withdrawal

Baroness Ludford Excerpts

Wednesday 13th February 2019 Lords Chamber

[Earl Cathcart (Con)]

My Lords, I have not spoken in a Brexit debate until now because I did not think there was any point. What I might have said would have been said dozens of times before, and I do not suppose that whatever I say here today will have the slightest effect on the outcome. However, on this occasion, I wish to ask my noble friend the Minister a question.

Before I start, I should say that I voted to leave in the referendum. Indeed, I voted to leave in 1975 as well. Before we joined the Common Market, Britain had 100% control over its destiny and its laws, rules and regulations. The reason I voted to leave in 1975 was that I thought there would be a loss of sovereignty and, like the vast majority of Brexiteers, the reason I voted to leave in 2016 was to regain that sovereignty. I know that remainers cannot understand why Brexiteers voted to leave, just as Brexiteers cannot understand why remainers voted to stay, but we are where we are. What we need to do now is find a way through this quagmire that is in the best interests of the United Kingdom.

We are told that if we do not vote for Theresa May’s deal, there is a danger of us crashing out with no deal—falling off the cliff edge, which we have heard again today. I am not sure that we need to fall off a cliff edge if there is no deal, because under Article XXIV of the World Trade Organization’s General Agreement on Tariffs and Trade, the United Kingdom and Europe would be allowed to continue with the zero-tariff, zero-quota trading arrangements after 29 March. As the EU enjoys a £95 billion surplus with the UK, I cannot see why it would not welcome such an arrangement.

However, there are conditions. First, both parties have to agree to this standstill arrangement covering all goods trade, but could then negotiate at a later date a more comprehensive free trade agreement covering services and so on. This might not solve everything, but it should ease some of the fears about a cliff edge. Secondly, both parties must be in negotiations for a free trade agreement. It is on this point that I can see the Minister saying why we cannot invoke Article XXVI. He might say, “We have tried to negotiate a deal. Negotiations have failed, they have broken down, and because they have, we will not be able to invoke Article XXIV; hence, we are leaving without a deal”. I disagree. Just because the first deal put on the table is unacceptable does not mean that the second one will be—if at first you don’t succeed, try, try again. That is exactly the point of Article XXIV: to reduce the disruption while negotiations continue.

I understand that the Department for International Trade is investigating the possibility of invoking Article XXIV. I also understand that the Malthouse compromise envisages as plan B, in the absence of a formal withdrawal agreement, a basic interim agreement with the EU using Article XXIV. However, it is disappointing that the Department for Exiting the European Union is silent on Article XXIV. I can understand the political reasons why No. 10—

[Baroness Ludford (LD)]

I am sorry to interrupt the noble Earl, but I draw his attention to a briefing by the House of Commons Library from last week, No-deal Brexit and WTO: Article 24 Explained. Briefly, it makes it clear that if you have no deal, you cannot invoke Article XXIV. It is about interim application with a view to a full trade agreement. If you crash out with no deal, you are not negotiating a full trade agreement. Anyway, apparently no interim agreements have been registered with the WTO since 1995, because they can be objected to.

[Earl Cathcart]

I think I have just explained exactly that point. Just because the first deal is unacceptable, does not mean that the next deal will be. Negotiations will continue.

I was saying that I can understand the political reasons why No. 10 would want to keep Article XXIV under wraps, because talking about its possibility in public would reduce MPs’—and, indeed, noble Lords’—fears about no deal. This would make no deal considerably less frightening and therefore lessen the chances of the Prime Minister’s deal being passed. I ask the Minister: what discussions have the Government had with Brussels, and indeed the World Trade Organization, about the possibility of invoking Article XXIV, to ensure that we meet all the necessary conditions? Where there is a will, there is a way.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, the UK is now fewer than 50 days away from the due date set by Brexiters for leaving the EU, but the Government are yet to bring forward a deal that commands a majority; nor have they proposed amendments to the withdrawal agreement that the EU can agree to. Yesterday’s Brexit Statement showed that nothing has changed. It just took us even closer to the scheduled exit day with no sign whatever of when or how the Brexit mess is going to be resolved.

The Prime Minister’s run-down-the-clock strategy is hidden in plain sight, although even before the eavesdropping on Olly Robbins it was obvious that she would have to ask for an extension to Article 50. The regret is that she lacks the honesty to acknowledge that, apparently preferring to inflict deep anxiety and pain on businesses as well as her fellow countrymen, who rely on vital medicines, need to know if they will still have a job on 30 March or want to make travel plans. For those who rely on nurses or carers who are EU citizens, the ending of free movement and the imposition of a £30,000 salary threshold is frightening. The noble Baroness, Lady Bull, mentioned this, among many other things, in her excellent speech.

Mrs May said yesterday in the Commons that she had wanted everything “sorted before Christmas”. A riposte to that used somewhat unparliamentary language, perhaps understandably, since this was a blatant piece of economy with the truth. The Prime Minister herself kicked the can down the road, axing the meaningful vote scheduled for December in order to keep her extremists happy. She continues to do so. Over almost three years, the Prime Minister has dithered, delayed, prevaricated, obscured and wasted time at every stage, not least with a completely pointless election in 2017.

One of the obfuscations being practised by the Prime Minister is over the assertion that the words “alternative arrangements” already appear in the package. They are in the withdrawal agreement in the political declaration but in a completely different context from the so-called Brady amendment. In the deal, they describe arrangements that would be reached in the future relationship to supersede the backstop such that it does not have to kick in, not as a replacement for the guarantee that the backstop represents. The way that the Prime Minister is distorting the truth of that drafting is beneath her dignity.

Brexit Secretary Stephen Barclay says, “We are committed to getting a deal”. The Prime Minister had a deal before Christmas. In January, she claimed that it was the only deal in town. She confirmed yesterday in her Statement that the EU was maintaining its position that it would not reopen the withdrawal agreement. She also said four weeks ago that the EU was not prepared to agree a unilateral exit or time limit and that any attempt to make such changes to the withdrawal agreement would risk other member states raising issues about fisheries access or Gibraltar. However, she said yesterday that both these things were among her asks. Earlier, the noble Lord, Lord Callanan, said that it was reasonable to seek these changes. Can he tell us whether we are still risking other member states raising fisheries access and Gibraltar?

Houdini has nothing on Theresa May and her Government. It is clear that reopening negotiations between Messrs Barnier and Barclay is simply smoke and mirrors designed to buy the Prime Minister time. Donald Tusk tweeted just a few hours ago:

“No news is not always good news. EU27 still waiting for concrete, realistic proposals from London on how to break #Brexit impasse”.


There is so much dishonesty from the Government. As Confucius apparently said:

“When words lose their meaning, people lose their freedom”.


Thankfully, there are signs that MPs are breaking out of their cage of learned helplessness, because deliberate procrastination and keeping no deal in play have consequences in the real world. As the British Chambers of Commerce said today, and as my noble friend Lord Newby noted, it means that businesses risk,

“being left hung out to dry”.

How is that a responsible thing for a Government to do?

We are all familiar with the Brexit promise made by Trade Secretary Liam Fox that he would have 40 trade deals ready for one second after midnight on 29 March. That, of course, is the same Dr Fox who said that a free trade deal with the EU should be the “easiest in human history”. Other Brexit promises worth recalling include one from Michael Gove. In April 2016 he said:

“The day after we vote to leave, we hold all the cards and we can choose the path we want”.


John Redwood said in July 2016:

“Getting out of the EU can be quick and easy—the UK holds most of the cards”.


I am not sure how that has gone. In the same tradition, I am afraid, we now have the Prime Minister’s promise to maintain workers’ rights at an even higher level than that guaranteed in the EU. However, that was somewhat torpedoed by the noble Viscount, Lord Ridley, who castigated EU labour laws, so I do not think that there is unity on the Tory Benches in regard to workers’ rights.

What exactly is this farce now about? Apparently it is about keeping the Conservative Party together, although the long-term prospects of that look slim—in fact, the party is completely incoherent. In the meantime, how many sacrifices is the country expected to make on the altar of that elusive Tory party unity?

For the Prime Minister to play games with the welfare of British citizens is, in my opinion, morally reprehensible. As one commentator put it today, Mrs May’s new addition to her well-worn vocabulary—an injunction to “hold our nerve”—might be good advice for a nation facing some terrible external threat but it is an absurdity when applied to an entirely self-inflicted fiasco.

The things that I am holding my nerve about are an extension to Article 50 and a people’s vote, because I think that the prospects of both are rising. The Prime Minister is allowing herself many bites at the cherry but refuses to allow the voters even one single chance to reassess whether her Brexit is such a great idea. This cannot hold and must change. Agreeing to the opposition Motion tonight is one step in achieving that change.

Brexit: Article 50

Baroness Ludford Excerpts

Tuesday 5th February 2019 Lords Chamber

[Lord Callanan]

I always get a very warm welcome from all parts of this House. As a representative of the Government, I can only tell the noble Lord what the policy of the Government is as set out by the Prime Minister, which is that we will not seek an extension and will leave the European Union on 29 March.

[Baroness Ludford (LD)]

My Lords, I agree with the drift of the question from the noble Lord, Lord Hannay. It is clear that the Government will have to seek an extension of Article 50; several Cabinet Ministers support such an extension. Is not the attempt to corral MPs into supporting the Prime Minister’s deal—although she does not support it herself—by threatening a chaotic and disastrous no deal immoral as well as an abdication of government responsibility?

[Lord Callanan]

I do not agree that we are corralling anybody; we are attempting to convince Members of Parliament that the best way to avoid no deal is to vote for a deal. I am pleased that a number of the more sensible Labour MPs are also reaching the same conclusions—and one Liberal Democrat MP.

Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Baroness Ludford Excerpts

Monday 28th January 2019 Lords Chamber

[Baroness Ludford (LD)]

My Lords, the sunlit uplands of Brexit have disappeared into the fog. The land of milk and honey has morphed into the country of damaged prosperity, with jobs in peril. Brexit-supporting businessman James Dyson is upping sticks and moving his business to Singapore, while Jacob Rees-Mogg is moving his money to Dublin to continue to enjoy the benefits of the single market. It sounds like a case of rats leaving a sinking ship.

Instead of £350 million a week for the NHS, we have a health service haemorrhaging EU nurses it cannot afford to lose. Liam Fox, a man who invoked the slogan “Let’s give our NHS the £350 million the EU takes every week”, claims that delaying Brexit would open up a gulf in trust with the electorate. That is beyond parody.

The possibility of a crash-out no deal, hopefully ruled out by MPs tomorrow, apparently raises for the Government a prospect of civil disorder requiring troops and martial law. I say to the noble Lord, Lord Shinkwin, that ruling out no deal is not institutionalised timidity but about ensuring that the British people get their food and vital medicines.

No longer promising Utopia, the pro-leave case now boils down, at best, to how we must grit our teeth and summon up our blitz spirit to endure and survive the misery of the coming storm as it is “the will of the people”. There is no willingness, of course, to update our knowledge of what that “will” is in the light of Brexit reality rather than Brexit fantasy.

This gloomy prospect is now accompanied by abuse. It is not only abuse from the thugs who jostled and harassed Anna Soubry just yards from here, with the police apparently having forgotten what happened to Jo Cox, or the abuse affecting EU citizens and minority British citizens who are the target of hate speech and hate crime, as mentioned by my noble friend Lord Wallace of Saltaire. Unacceptable language is also coming from senior members of the Tory party. We heard former Minister and ERG leading light, Suella Braverman, directing against a former Prime Minister of her own party, Sir John Major, the populist insult of “remainer elite”, leaving aside that he was brought up in Brixton with no silver spoon and no Eton mess, as the noble Baroness, Lady Wheatcroft, put it, unlike some Brexiters we could think of. Miss Braverman, I believe, attended Oxford and the Sorbonne. Her sense of irony seems deficient.

Just this weekend, ERG member and former Tory Whip Mark Francois accused Airbus boss Tom Enders of ‘Teutonic arrogance” adding, “My father was a D-day veteran; he never submitted to bullying by any German and neither will his son”. He was talking about the boss of a company which provides 14,000 jobs in this country directly and another 120,000 in the supply chain. I wonder whether these remarks came up in any conversations that our Prime Minister is having with Angela Merkel. I cannot see the German Chancellor being much impressed by Mr Francois’ idea of winning friends and influencing people. Quite how this type of pseudo-Churchillian rhetoric, as one journalist aptly described it, is supposed to be helpful in the contemporary promotion of “global Britain” is beyond my comprehension.

I agree with the noble Lord, Lord Hain, about the disgraceful attitude from too many in public life towards the Irish Government, whom we need as friends. It would be good if the Prime Minister brought these people in her party to heel. The trouble is that she set the tone of unpleasantness with her “Go Home” vans and “hostile environment” at the Home Office, culminating in the scandal of Windrush. It was she who called her internationalist countrymen citizens of nowhere and called EU free-movers queue-jumpers. She even once made up a totally false story about how a migrant was invoking in his claim to stay his human right to have a relationship with his cat. You would never think from all these gratuitous insults that this is the group who won. Surely they should be full of joie de vivre, confident in their own assurance that Brexit is a fabulous idea that will make everyone better off. Or do they know it will not?

The noble Lord, Lord Cormack, quite correctly wants these divisions to be healed, but when the Prime Minister claimed, as she did last week, that,

“a second referendum could damage social cohesion”,—[Official Report, Commons, 21/1/19; col. 26.]

I think we are entitled to retort in the light of Tory Brexiter utterances: “Physician, heal thyself and thy party”. Brexiter politicians, who are allowing themselves plenty of opportunities to review and change their mind, insist on denying even one such opportunity to the voters. I say to the noble Lord, Lord Sterling, that it was in fact Nigel Farage who said that, if remain won, he would want a further referendum.

Like the noble Lord, Lord Liddle, I would be interested in hearing from the Minister the latest on the manoeuvring to get the backstop removed. Is it true that the Government are putting a three-line Whip on the Murrison-Brady amendment tomorrow which they know the EU will reject because it is incompatible with the withdrawal agreement? Apparently, the ERG is rejecting it, too, so what is the point? The noble Lord, Lord Ricketts, explained that there is none.

The noble Lord, Lord Dobbs, said that the British people voted for Brexit. Is he able to tell us which of the 57 varieties the 37% voted for? I gently remind the noble Lord, Lord Desai, that my noble friend Lord Newby did not say that the 37% does not count. That is not the attitude of any remainer I know. My noble friend simply corrected the Minister, who said last week that leave voters represented a majority of the population.

The country needs an end to hypocrisy and double standards, and the same chance to think again that MPs are being allowed. We must have a people’s vote with an option to stay in the EU. As my noble friend Lord Campbell of Pittenweem said, we will accept the result of a further referendum based on informed consent. Then we would make a start on achieving real social cohesion in this country. In the meantime, these Benches will support the opposition Motion.