European Union (Withdrawal Agreement) Bill

Lord Beith Excerpts

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

[Lord Beith (LD)]

My Lords, I agree with much of what the noble Baroness said, and I also want to emphasise how much I agree with my noble friend who leads for us and who spoke at the beginning—my noble friend Lord Newby. He set out the broader issues very well, which enables me to concentrate on some of those that are of interest to the Constitution Committee. Noble Lords will have to wait until tomorrow to find out whether my views correspond precisely to those of the committee as a whole, when the report referred to by the noble Baroness, Lady Taylor, will come out in time for Committee.

I want to start with the claim about getting Brexit done, which is manifestly absurd. It is almost as if Moses had said to the Israelites, “Stick with me and I will get Exodus done by the end of the month.” He did not get it done by the end of the month; it took 40 years and he was not actually there at the finish. That ought to be a warning. I sometimes wonder whether Brexiteers have read the Bill. Although it repeals the European Communities Act, it simply reinstates and reapplies its provisions, for the rest of this year at least and, in many cases, for longer than that. We will transfer from being a member state with a vote and a veto to colonial status—accepting rules but having no say in them.

There are reasons for this carryover of time. Extricating ourselves from 40 years of working together is difficult, and in many cases against our economic interests. It means, for example, that decisions of the European Court of Justice handed down after the end of the implementation period will continue to have effect under Clause 5. And, of course, we are only at the beginning of a negotiating process that will not be completed by the end of 2020, even if a limited agreement is reached. As the noble Baroness, Lady Blackstone, and others pointed out, this Bill drops all provisions for parliamentary scrutiny of the negotiating process.

It makes me wonder what these new MPs for the old industrial areas of the Midlands and the north are going to do when the interests of their communities start to be traded for the interests of other communities, as the sorts of decisions that have to happen in these negotiations begin to be made. They will probably discover them via the European press, then see them reported in this country, because it will all emerge in the European Parliament while nobody here is being told anything about it. This is a process that requires a sensible method of parliamentary scrutiny.

The Bill has too many Henry VIII and other ministerial powers, and in a number of cases lacks the sifting or sunset provisions that could provide some safeguards. In Clause 26, Ministers are given inappropriate power over the courts, in a proposal that opens the door to legal confusion and multiple layers of litigation. It will allow Ministers to set up a scheme allowing any court, rather than just the Supreme Court and the High Court of Justiciary in Scotland, to depart from ECJ case law. If the Government have arguments to support the creation of such a scheme, the scheme should be on the face of the Bill—but I wonder how persuaded much of the Government is about whether this is really desirable at all. I suspect that a write-around of departments that included not only the Ministry of Justice and the Home Office but also Her Majesty’s Revenue and Customs, along with the various other departments that get involved in legislation, would show that they are not particularly enthusiastic about it. It is a dangerous course to embark on, and one that will cause considerable confusion, with the only beneficiaries being the lawyers who take cases under it—at almost any level, right down to employment tribunals, if the Government use these powers to the full.

In Northern Ireland the Bill reverses the principle that major change should have cross-community support by allowing decisions on the customs borders in the protocol to be by simple majority. The Government have not really advanced any clear reason for that, at a time when cross-community working is, thankfully, re-emerging in Northern Ireland.

The Bill contains an otiose assertion of the sovereignty of Parliament. The sovereignty of Parliament is a fundamental principle of the constitution. It gains nothing from inclusion in this or any other Bill, and its inclusion has no legal effect at all. Among other things, of course, it means that if it becomes necessary to extend the implementation period, which the Bill claims in Clause 33 to prohibit, Parliament—if the Government so chose—could readily pass new legislation to extend the implementation period or to achieve the same effect by different words—which is the whole basis on which the Bill is constructed. The Bill is constructed on the basis that we repeal the European Communities Act but give effect to its provisions as if it still existed. The Government can do exactly the same with the supposed restriction on extending the transition period, and they might well have to do so. Those who now wish to legislate sovereignty into existence, which seems bizarre to me, seem to forget that it is already there; it was there before they were born, and they too are subject to it.