European Union (Withdrawal) Bill

Lord Adonis Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I added my name to an amendment in this group. I spoke at length to a similar amendment, my own Amendment 210, earlier in the Bill, so I will be fairly brief.

I fully support everything the noble Lord, Lord Wigley, has said. It is important that we should understand that the loss of EU citizenship would affect British citizens resident in the UK as well as those living abroad. That is a huge number of individual citizens whom the noble and learned Lord, Lord Keen, avoided referring to in reply to my own amendment but who are aggrieved at that potential loss of individual citizenship. In that same reply, the noble and learned Lord said:

“Let us be clear that EU citizenship is linked directly to citizenship of a member state”. —[Official Report, 7/3/18; col. 1081]


I do not argue with that. The court case begun in Amsterdam is to determine the nature of such linkage and whether a citizenship, once held by a citizen, cannot be taken from them against their will whatever actions are taken at the national level.

It is young people who will feel the loss of EU citizenship most keenly, not just the principle of European citizenship; it is young people who feel most European. Also they will feel the real practical effects of that loss, particularly if we also leave the single market. As others have pointed out, young people have found a strong voice in the group Our Future, Our Choice—one of whose founder members, incidently, was a leaver who changed his mind. We have all learned a lot since the referendum; that is something that, as a country, we should freely admit.

In the EU citizenship debate in the House of Commons on 7 March, the Immigration Minister, Caroline Nokes, said:

“We are content to listen to proposals from the EU on associate citizenship for UK nationals”.—[Official Report, Commons, 7/3/18; col. 351]


So I ask the Minister: has there been any development on that front, bearing in mind that such a citizenship, according to Voelker Roeben, would not depend on revision of the founding treaties? I warmly support the amendment.

[Lord Adonis (Lab)]

My Lords, I completely understand the motivation of the noble Lord, Lord Wigley, and I am of course entirely with him in wanting to stay in the European Union, but I am at a complete loss to understand how it is possible for British citizens to continue having European citizenship after we have left the European Union. I simply do not understand how it is possible to have citizenship of an organisation of which we are not a member. The specific issue of what happens to European Union residents in Britain, given that the Government have already committed that their rights will be guaranteed for a further seven years, is a completely different point. Assuming that the noble and learned Lord will be replying to the debate, will he tell us what the precise relationship will be between the European Court of Justice, European law and the seven-year guarantee of the rights of EU citizens currently resident in the UK?

[Lord Wigley]

The noble Lord understandably challenges the point, and he is right to do so, and I too would much prefer we were not leaving the European Union. But there are precedents—I quoted the example of Greenland—and there is also the parallel question of associate citizenship, which has been raised as a possibility by people with a background in international law as a perfectly viable option.

[Lord Adonis]

My Lords, my understanding is that Greenland became independent of Denmark, so the situation was very different from the one we are talking about here.

It is very important that we do not offer people false hope. It is important over the next year that people understand the full gravity and consequences of the decision the Government are proposing to impose on the country. There are no halfway houses. What does this thing called associate citizenship amount to? It amounts to a row of beans. There is no point offering people the prospect that we can somehow have the benefits —it is a classic case of having our cake and eating it. It is important that those who are in favour of staying in the European Union do not somehow think there are all kinds of halfway houses, which might give us all the benefits without staying in the European Union. It seems to me a very simple proposition: if people want to enjoy the benefits and rights of citizenship of the European Union, there is only one way to do it and that is to remain a member of the European Union.

[Baroness Smith of Newnham (LD)]

My Lords, I support the noble Lord, Lord Wigley. Like the noble Lord, Lord Adonis, I thought that the founding idea of European Union citizenship in the Maastricht treaty, which goes back to 1993—so I was not sure how it was applicable to the case of Greenland, which left in 1986—was that you had to be a citizen of an EU member state in order to have EU citizenship. However, my new understanding is that, as Article 20 of the Treaty on the Functioning of the European Union reads that,

“citizenship of the Union shall be additional to and not replace national citizenship”,

this might give a little more wriggle room. I agree with the noble Lord, Lord Adonis, that policies of having cake and eating it are not necessarily desirable. However, we are in a debate about the withdrawal Bill. This morning I thought that perhaps we were so keen on having another Second Reading debate and thinking about the referendum all over again that we had lost sight of the Bill.

[Lord Adonis]

My noble friend Lord Murphy has just made an ingenious suggestion. Under the Good Friday agreement all residents of Northern Ireland are able to apply for Irish citizenship, which of course also gives them citizenship of the European Union. Perhaps if we allowed all citizens of Britain to apply for Irish citizenship by extending the Good Friday agreement, we could get the benefits that the noble Baroness is seeking to achieve.

[Baroness Smith of Newnham]

My Lords, I was intervened on and had not finished—in fact, I had barely started. The point is that many people feel that we have talked a lot, absolutely rightly, about the rights of EU citizens who are resident in the United Kingdom, and we have talked a bit about the rights of UK nationals who are resident in other European countries, but there has been very little discussion about those people who are not overtly exercising their rights, as the noble Lord, Lord Wigley, said. When we have considered UK nationals resident elsewhere, we have tended to think about people living—retired, working or studying—in other countries. Here I declare an interest: my day job is as a lecturer in European politics. On an almost daily basis I consider that I am exercising my rights as an EU citizen by being able to get on the Eurostar and go to Brussels without having to think about visas or visa waivers. There are all sorts of ways in which we are able to exercise our rights as citizens on a daily basis.

I suspect that the Minister will say, “This is absolutely not possible”, but will he at least say that the Government are thinking about the rights that British citizens might retain? So far, much of the debate on withdrawal has been about regulations and whether we retain laws, but do we also retain rights, and do the Government wish us to retain rights?

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[Lord Keen of Elie]

It is so utterly basic to the issue that it is difficult to conceive of many, if any, people who did not understand the nature and consequences of Brexit, so I will not elaborate on that.

I want to come back to remarks made by the noble Lord, Lord Adonis, as well as the noble Lord, Lord Wigley, in an earlier debate. We have debated this already in Committee in the context of another amendment. The noble Lord, Lord Adonis, mentioned Northern Ireland. Clearly, where one meets certain residency tests in Northern Ireland, one is eligible to apply for a passport from the Republic of Ireland Government. By that means, membership of an EU state can be retained and one can remain an EU citizen. As I indicated in an earlier debate, there are two areas of opinion in Northern Ireland: there are people who are perfectly happy—indeed, anxious—to secure a passport from Dublin and people who have no desire to do so.

[Lord Adonis]

I am afraid I must disappoint the noble and learned Lord because I think we are continuing to agree. However, I asked him why he will not extend the right to apply for an Irish passport to those of us on the mainland.

[Lord Keen of Elie]

It is not in my gift. It would be a matter for international treaty negotiation between the United Kingdom and the Republic of Ireland. It is for Ireland to decide who it will admit as citizens of the Republic; it is not for us to demand. That is the answer to the noble Lord’s point.

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Moved by

[Lord Adonis]

372: Schedule 9, page 67, leave out line 38

[Lord Adonis]

My Lords, it appears to fall to me to move the 372nd and last amendment to the Bill. By my calculations, some 236 noble Lords have so far taken part in the deliberations on this Bill, which is more than the entire membership of your Lordships’ House for the first six centuries of its existence. I believe, from a quick scan of Hansard, that we are now in our 115th hour of deliberations on the Bill, which is time enough for two and a half circumnavigations of the globe—which I am told is roughly what Dr Liam Fox has so far undertaken in search of trade treaties to succeed the European Union. It has also enabled the Minister and me to forge a deep and special partnership, but the maiden aunt of the noble Lord, Lord Lisvane, need not be too alarmed because we have had witnesses present for the entire duration.

This amendment would prevent the repeal in this Bill of the European Union Act 2011, which provides for referendums in the case of significant changes to the treaties regulating the European Union. I do not want to go into the substance of the legal issues involved—I refer noble Lords who wish to understand those issues to the entry on 4 July 2016 of the blog by Pavlos Eleftheriadis, who is professor of public law at Oxford University, where there is a substantial subsequent debate. However, these matters are before the courts at the moment. There is a case which is pending, and the courts will decide these issues. I do not think I can add much to those deliberations.

My reason for bringing this amendment to the attention of the Committee is that there is an important constitutional principle at stake. The European Union Act 2011 was of course passed by both Houses of Parliament. It was passed by an emphatic majority of the House of Commons, where on Second Reading it was passed by a vote of 330 to 195. Yet there was no express vote or debate in the House of Commons on the issue of repealing this 2011 Act when the Bill went through the House of Commons. Indeed, it is not even clear from the debates that most Members of the House of Commons were aware of the fact that this Bill does repeal the European Union Act 2011, since there was no reference whatever to the Act in the deliberations of the House Commons. The issues which have become controversial in recent weeks since the legal actions started were not matters of public debate when the Bill was going through the House of Commons.

The European Union Act 2011 was regarded as a flagship piece of legislation in the 2010 Parliament. The noble Lord, Lord Hague of Richmond, who was then Foreign Secretary and who proposed the Act told the House of Commons:

“The Bill makes a very important and radical change to how decisions on the EU are made in this country … It marks a fundamental shift in power from Ministers of the Crown to Parliament and the voters themselves on the most important decisions of all: who gets to decide what”. —[Official Report, Commons, 7/12/10; col. 193.]


It was a significant piece of legislation, not a minor piece of legislation. My contention is simple and straightforward: that on a matter of this gravity, where Parliament is repealing a significant piece of legislation, it is not too much to expect the House of Commons to debate, deliberate and vote on that repeal. There has been no debate, no deliberation and no vote on the part of the House of Commons. It seems to me to be an absolutely appropriate exercise of your Lordships’ power to ask the House of Commons to consider matters properly, and that this House should ask the Commons to have an express debate and vote on the repeal of the European Union Act 2011. I beg to move.

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[Lord Mackay of Clashfern (Con)]

My Lords, I understand that that political point can be shortly made and it would dispense with all our consideration of this Bill altogether.

I played quite a part in the 2011 Act—along with the noble Lord—in stating what the position in law was for EU law in this country. I was keen to point out that the treaty did not of itself have that effect. It became an argument later when the noble Lord, Lord Pannick, argued about these and other matters in the Supreme Court. However, the point was that the authority for EU law in our country is the 1972 Act. This House affirmed that and the House of Commons accepted it.

The important thing about the 2011 Act is that its repeal is consequential on the repeal of the 1972 Act and our departing from the European Union. Matters that are consequential are usually covered in schedules. If noble Lords wish to discuss purely consequential legislation, so be it, but it is not necessary. As the noble Lord, Lord Adonis, said, we have used it quite a few times and, given the amount of time we have spent on this Bill, it is appropriate that this provision repealing the 2011 Act should be in a schedule.

[Lord Adonis]

My understanding is that it is not consequential that the repeal of the 2011 Act under this schedule will take place when this Bill becomes law at a point determined by a Minister, whereas we only repeal the European Communities Act 1972 on Brexit day, 29 March next year, or later under Clause 14(4) if a Minister chooses to extend the date.

My understanding—it is important to tease out these issues because we are a revising Chamber—is that this is being done deliberately by the Government. They want to forestall any cases coming under the 2011 Act as soon as possible. I assume they have read the legal opinion which raised doubt about the interpretation of the 2011 Act and do not want them rumbling through the courts before the repeal of the European Communities Act 1972 takes effect.

[Lord Mackay of Clashfern]

That does not prevent the repeal of the 2011 Act being consequential on the main provision in this Bill.

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[Lord Goldsmith]

My Lords, it must be unprecedented to have such a long and well-attended debate on what is almost the final repeal in the last schedule to a Bill. Given that this is the last debate that we will have in the Committee stage, perhaps I may, as the person who happens to be responding from these Benches, pay tribute to the quality of the contributions that have been made by all sides of the Chamber, including from my noble friend Lord Adonis. I have to say that anyone outside who says that we have been spoiling or somehow wrecking the Bill would not be able to maintain that charge in the light of the clarity and detail of the scrutiny that we have given the Bill.

As to the amendment, I admire the ingenuity which brings it forward. It is clear that the purpose behind it ultimately would be to trigger the referendum-requiring provisions set out in the 2011 Act. There are two ways of looking at that. One is to consider the political nature of the 2011 Act and compare that with what is happening at this stage, where one might well say, if I dare, that it was simply a staging post to the position we find ourselves in now. Many of us find the position of exit an unhappy one, but it would be a staging post to that and it has now passed. There is a legal question which is quite different: whether in fact the conditions in the 2011 Act are triggered. From what the noble Baroness, Lady Ludford, has said, there are legal proceedings which may challenge that, and I do not think it is right for me to venture an opinion from this Dispatch Box as to whether those are right or not.

However, I will venture a political opinion from my position, which is this. We are well aware that there are some in this House, in particular on the Liberal Democrat Benches—we fully respect their views, even if we may not share them—who would like to see a further referendum, and many in the country would like to see that. If that is going to happen, one might say that the way for it to come about is through a direct vote on whether a referendum should be taking place rather than what might seem to be a side wind. And that is my problem with the proposed amendment, even though it is ingenious. I have reason to believe—indeed, I suspect, from what the noble Baroness, Lady Ludford, said—that this House will have an opportunity on Report to express its view directly, full-throatedly and openly about a further referendum. The House will give its view, but I am not convinced about doing it through this route.

[Lord Adonis]

Can my noble and learned friend give his view on whether it is appropriate that the 2011 Act should be repealed in advance of the repeal of the European Communities Act 1972?

[Lord Goldsmith]

It is perfectly appropriate, although I do not like the word “appropriate”, as we all know. Perhaps the answer is that it is not necessary, but it may be appropriate.

I fully respect what the noble Lord is doing. It is not easy to say this but, politically, the 2011 Act was a staging post on the route—as it turns out—to full Brexit, even though some people still hope that we will not go that far, and it has therefore served its purpose. I am not making a legal analysis of whether the conditions in the Act apply because I can see arguments why they may and why they may not; I am explaining why, if there is a suggestion that this House will vote for a referendum, it would be better to do it on an amendment or a Motion that directly raises that question. It can then be fully debated and we can all have our say. For those reasons, I very much regret to tell my noble friend that I cannot support his amendment.

[Lord Callanan]

My Lords, after 115 hours of Committee debate, as observed by the noble Lord, Lord Lisvane, it is somehow appropriate—that word again—that the last and 372nd amendment should be tabled by the noble Lord, Lord Adonis. He referred to our deep and special partnership; I think that is probably going a bit far, but to mark the occasion, I thought I would get him a gift to celebrate his perseverance. The Adonis nut bar is available in all good health shops. He is welcome to collect it later.

In responding to Amendment 372, I want to be very clear about what the European Union Act 2011 does. The Act contains a recent mechanism for two principal goals—first, to provide that where Ministers participate in certain types of decisions, those decisions are specifically approved in the UK. This normally happens via an Act of Parliament. The Act passed last year to approve the decisions—which allowed the participation of Albania and Serbia in the work of the EU Agency for Fundamental Rights and the conclusion of an agreement on competition law between the EU and Canada—is an example of this. Secondly, the Act also provides that where there is a revision to the fundamental treaties of the EU, akin to the treaties of Lisbon or Maastricht, there should be an Act of Parliament—and, in certain circumstances, a referendum in the UK—before the UK Government could approve those changes.

I invite noble Lords to cast their minds back, as some Members have done, to 2011 and the context in which this Act was passed. Sadly, I was not a Member of your Lordships’ House then; I was with the noble Baroness, Lady Ludford—not directly; we were Members—in the European Parliament. The Act was drafted in the context of its time in response to new EU methods of approving treaty changes and calls for more public and parliamentary involvement in such decisions. Its purpose was to regulate decision-making on the UK’s relationship to the EU treaties in the context of the UK as a member state. At that point, the idea of holding a referendum on the UK’s membership of the EU was far from the Government’s mind, let alone undertaking the most complex negotiation in history to recast that relationship with the UK outside the EU treaties.

Of course, everything has changed since then. We are leaving the EU. The 2011 Act is redundant. It is appropriate to repeal redundant legislation. It may even be necessary to repeal the 2011 Act. Amendment 372 would prevent the Bill from repealing the 2011 Act. From previous statements made by the noble Lord, Lord Adonis, I understand that he intends to use the Act in an attempt to secure a second referendum—no surprise there. I will not revisit the positions that we have already covered extensively in debate about the merits or otherwise of holding a further referendum as part of the process of our exit from the EU; no doubt the Liberal Democrats will enable us to return to this matter on Report. We have covered that at length in this Committee; suffice it to say that the Government think, first, that a second referendum is not appropriate and, secondly, that it is most certainly not for this Bill to provide for one.

[Lord Adonis]

If I could have a last celebratory intervention on the Minister in Committee, can he indicate to the House when the Government intend to use the powers they would get under this Act to repeal the 2011 Act?

[Lord Callanan]

I do not want to give the noble Lord a precise date at this time. We will wait until the legislation is on the statute book before deciding such things.

Crucially, a second referendum is not provided for by the 2011 Act. As I hope I have set out, that Act could never have been intended to achieve that goal.

[Lord Adonis]

Is the Minister indicating that the Government may repeal the 2011 Act in advance of the repeal of the European Communities Act 1972?

[Lord Callanan]

I will not comment any further on the repeal date, I am afraid, no matter how many times the noble Lord asks me.

I refer noble Lords to the first sentence of the first part of the Explanatory Notes to that Act. Acts of Parliament or referenda are required by the 2011 Act,

“if these would transfer power or competence from the UK to the EU”.

We are leaving the EU. That process is neither governed by the types of decision referred to in the 2011 Act, nor involves a change to the treaties on European Union or the functioning of the European Union. Those treaties will go on without us, governing the EU and its institutions, for which we wish only the greatest of success. Moreover, I hope it is unquestionable for the Government to pursue a withdrawal agreement that will transfer power to the EU; it is the nature of leaving the EU that it must involve a transfer of power back to the UK. Therefore, I say with all due respect to the noble Lord, Lord Adonis, that it is disingenuous of him to mislead others outside this House that the 2011 Act is an instrument to deliver a second referendum on our membership of the EU.

We are progressing towards establishing a future relationship with the EU as an independent third country. As part of this, we will require new processes for approving our new relationship with the EU. The Government are committed to giving Parliament a vote on the final deal of our withdrawal agreement negotiations.

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Therefore, I hope noble Lords will understand that the 2011 Act is not perhaps what some present it to be and that it is right that it is repealed to make way for our future processes of securing parliamentary approval for the Government’s relationship with the EU. Therefore, for the last time, I ask the noble Lord if he would please withdraw his amendment.

[Lord Adonis]

My Lords, I am immensely grateful to the noble Lord for the gift of the Adonis nut bar. I tried to buy one online and was told that the site is pornographic—the parliamentary internet is very well policed—but I could refer the matter to my supervisor if I wished to take it further. I toyed with referring it to my noble friend the Leader of the Opposition but I thought she would be very keen that I did not eat the nut bar, because she thinks I have far too much energy at the moment in any event in pursuing these matters in the House.

[Lord Dobbs (Con)]

I found one of these nut bars the other day. It has lots of impenetrable small talk and carried a health warning. I think it was suitably named.

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[Lord Adonis]

My Lords, I have always disregarded health warnings on the grounds that one would never eat anything at all if one proceeded down those lines.

The debate has been disappointing in that I do not think the two key points I made have been responded to. I have huge admiration for the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mackay of Clashfern, but they have not addressed the point that, in the way the Bill is framed, the repeal of the 2011 Act is emphatically not consequential on the repeal of the European Communities Act 1972. Rather, it is consequential on the enactment of the Bill and it will take place well in advance of Brexit day and the repeal of the European Communities Act 1972. If it was indeed consequential on the repeal of that Act, which I fully accept it should be because we would not be a member of the European Union at that point, I would have no difficulty at all with the repeal in Schedule 9. It is because it is being deliberately accelerated in advance that there is an issue.

[Lord Mackay of Clashfern]

It cannot happen until immediately after Parliament has passed a Bill fixing a date for leaving the European Union. The 2011 Act has no substance or content at all apart from the European Union treaty, so this idea that it has to be consequential in time is an extra. It is consequential in its subject matter. That is what is really important.

[Lord Adonis]

My Lords, we might not leave the European Union next year. We have not enacted the legislation to do so. At the moment there is no treaty. The 2011 Act would be repealed under the terms of the Bill. The two are clearly not consequential.

[Baroness Ludford]

Does the noble Lord agree that there is no relationship between exit day and the repeal of the European Communities Act? Clause 19 says that the repeal, inter alia, of the 2011 Act, is a provision of the Bill that will,

“come into force on such day as a Minister of the Crown may by regulations appoint”.

It has absolutely nothing to do with exit day or the ECA.

[Lord Adonis]

That is the precise point. The big question that the Minister would not answer—I do not think he wanted to give me the answer—is why the repeal of the 2011 Act is being accelerated ahead of Brexit day and the repeal of the European Communities Act 1972. The Minister has not given an answer, nor has he given the Committee any indication of when that repeal would take place. My understanding is that the Government would seek to repeal the 2011 Act as soon as they can after the enactment of the Bill, which will mean that its terms would not apply for the period between that repeal and Brexit day, but it is of course perfectly possible. Who knows what will happen in the next 52 weeks? As Harold Wilson famously said, a week is a long time in politics, so goodness knows what will happen in the next 52. The Act would not apply. It may well be that my noble and learned friend is right that there is not a substantial legal argument here, but that is precisely the issue the courts are there to determine. They will not have the opportunity to do so because the Act will have been repealed.

[Lord Goldsmith]

To clarify, I did not say that. I deliberately did not express a view as to whether that argument would legally succeed precisely because I understand it is the subject of legal proceedings. I would not want for a moment to pre-empt them.

[Lord Adonis]

My Lords, those legal proceedings will by definition cease if the 2011 Act is repealed soon after the enactment of the Bill.

The second point that was not addressed, which is a matter of some substance, is that, on an issue of this gravity, surely it is not too much for the people to expect of Parliament that the House of Commons itself should expressly vote on the repeal of the 2011 Act. Because of the guillotine Motion in the House of Commons and the limited opportunities there were for debate in the Commons the matter was never debated, let alone voted on. That is one of our responsibilities.

My final point on the final day and the final amendment on the Bill, with such a magnificent attendance by noble Lords on the Conservative Benches, is to address the final point made by my noble and learned friend about taking a decision expressly on the issue of a referendum. I agree that it is a matter we should expressly take a decision on. The point of the 2011 Act is that it is existing statute law and should be repealed expressly only by the House of Commons.

It is clear that the dominating issue that will preoccupy us over the next six to nine months is whether the people themselves should have a say on the terms of the withdrawal treaty. What is already lurking behind the debate—it is, I am afraid, an issue of intense debate in my own party, but I suspect it will spread to other parties—is whether the people should be allowed that final say. It is clear that many people, I suspect including my noble and learned friend and maybe my right honourable friend the leader of the Opposition, at the moment do not think that a referendum is the right course. What is happening is we are having a charade of big debates about what are essentially second-order issues in the House while the consensus is rolling on that, maybe to avoid too big a division of public opinion, we should allow Brexit simply to roll on next year.

That will be the dominating issue of British politics in the next nine months: whether Brexit is a done deal, whether Parliament will debate, with the option of rejection, the Prime Minister’s withdrawal treaty and whether—in considering what is the biggest and most significant issue that has faced Parliament in this generation—before we take the final plunge into the unknown and engage in Brexit, we will give the people a say on the terms of withdrawal. That is a very big and weighty issue to raise at the very last moment of the debate in Committee, but in two weeks’ time we will regroup and start Report. We can rehearse all these arguments again. On that note, I beg leave to withdraw the amendment.

Amendment 372 withdrawn.