European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

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

[Lord Bilimoria (CB)]

My Lords, I am supporting and have added my name to Amendment 206 in the name of the noble Baroness, Lady McGregor-Smith. It is also supported by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Alli. The amendment is simple but necessary and goes to the heart of Parliament’s consideration of the UK’s withdrawal from the EU. It says:

“It is a negotiating objective of the Government to ensure that the withdrawal agreement provides for the United Kingdom’s continued participation in a customs union with the EU”.


In today’s economy, business is integrated worldwide, transactions are global, goods and services cross national borders every minute of the day, our greatest customers are our nearest markets, and we know that half our trade is with the other 27 countries of the EU. A lot has been made of Canada having signed a free trade agreement with the EU, CETA, which took eight years. However, the comparisons made with our situation do not apply, because what people do not understand is that the EU makes up less than 10% of Canada’s trade. Who is Canada’s biggest trading partner by far? The United States, which is next door.

It is not just the finished goods that are sold to these markets; the components and ingredients of goods, food and of course drink can flow through as imports and exports. I was speaking in Dublin a week before last for the Irish Food Board, Bord Bia. There the example was given of Bailey’s Irish Cream, which is made in Ireland, sent across the open border into Northern Ireland and packaged there, brought back into Ireland and exported from there around the world. In this European marketplace, we have stopped referring to these exchanges as “imports and exports” because the transmission of goods is so frictionless and continuous that we now just talk about “arrivals and dispatches”. This really matters to business—I speak as someone who has been in business for a long time and started my own business—and to the people employed by these businesses, and it is the customs union that makes it a reality.

I think we take a lot of that for granted today, but this choice, this virtually instant array of products, was not always available to customers and entrepreneurs. We have to remind ourselves that this degree of tariff-free, seamless trade has arisen not by accident but by careful design and the sharing of decision-making on trade policy. We dismiss these benefits of a customs union with the EU at our peril.

I invite noble Lords to picture for a moment the 2.5 million lorries passing through Dover each year and how our ports will cope if, in a year’s time, the continuous throughput of traffic is no longer. A programme on Radio 4 today illustrated this on both sides. If goods need inspecting at ports for exit and entry, revenue collecting, labels and licences checking, sanitary conditions measuring, quota weighing and duties paying, all this can take a long time and clog up the arteries of our economy. If these delays and blockages occur, not only will we need to contend with frustrated truck drivers and motorway congestion, companies with a just-in-time business model—we heard examples from the noble Lord, Lord Wigley—will need completely to rethink their practices, and their investors and customers will pay the price.

The EU has obtained more than 50 trade deals with countries across the world. This represents approaching 20% of our trade and will lapse in 2019 on our exit from the European Union. We need to remain party to those existing FTAs, and this amendment is the best way to ensure that. At the moment, 50% of our trade exists with the European Union. If you add approaching 20% of our trade through the European Union, we have a total of almost 70% with and through the European Union at the moment. We as a country are thinking of throwing that away to go after the 30%. Within the 30% is the United States of America, at 18%.

I am a great fan of the Commonwealth. We have CHOGM coming up here in April. I would love this country to do more trade with the Commonwealth and have been speaking about that during the 11 years that I have been a Member of this House. But let us get real. The Commonwealth makes up less than 10% of Britain’s trade; 70% is with and through the European Union. We can drive a better deal for Britain by applying the strength of the whole of Europe, rivalling any other world power.

So often, we hear this talk of going global and that we are going to do trade deals with countries such as India. India would love to do a free trade deal with the UK, but the reality is that India has only nine bilateral free trade agreements with any countries in the world, not one of them a western country. If you speak to the Indian high commissioner over here, he says that India is very happy to do a free trade deal but, as the noble Lord, Lord Davies, said earlier, it is not just about goods and tariffs; it is about movement of people. The commissioner says: “What about international students? What about our IT workers coming here? What about the fact that the Chinese get two-year multiple-entry visas for business and tourists at £85 and we Indians have to pay £350? What about that? Then let’s talk about free trade deals”.

David Davis mentioned dystopian. To me, the Brexiteers are living in a utopian world. We can drive a much better deal for Britain by applying the strength of the whole of Europe, rivalling any other world power. There is no either/or choice between trading with the European Union and trading with the rest of the world; we need to do both successfully, just as the Germans manage to do within the customs union.

I have heard from the horse’s mouth where India is concerned. It is very clear: an EU-India free trade agreement is far more important to India than a UK-India free trade agreement. It is simple: 500 million people or 65 million people; there is no comparison. Let us get real.

Then we have talk that, the moment we leave, we will just roll over these 50-plus free trade agreements that the EU has and do UK free trade deals with those countries straightaway—again, utopian dream land. Already, countries such as South Korea have said, “Hang on! We have to renegotiate that. We did a free trade deal with the EU on the basis of 500 million people and the world’s biggest free market. You want us to treat you in the same way with 65 million people? Forget it. Let’s renegotiate”.

[Lord Patten of Barnes (Con)]

Does the noble Lord recall that we made very good progress in the European Union in trying to negotiate a free trade agreement with India? It was actually slowed down—indeed, blocked—by the United Kingdom.

[Lord Bilimoria]

Well, we have worked for a long time to do a free trade deal with India, and it is in the offing. The Canadian one took eight years. Let us again be absolutely realistic about this.

The majority in the Commons are for staying in the customs union because of the fear of the extra costs. We know about the BuzzFeed leaked reports that found that Britain would be financially worse of outside the EU under any model or any of the scenarios. Hilary Benn, the chair of the parliamentary Brexit committee, has said that the government’s decision to make leaving the customs union its policy without first assessing the impact of doing so is, in his words, “extraordinary”.

The CBI, which represents 190,000 businesses which employ 7 million people, has said very clearly that customs union membership would,

“resolve the question of how to keep an open border between Ireland and the UK”,

which, as noble Lords have heard, is so important for maintaining the peace. We should not jeopardise the Good Friday agreement for anything. We have to get our priorities right as a country.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 26th February 2018 Lords Chamber

[Baroness Altmann (Con)]

My Lords, I support Amendments 10 and 163 and declare my interest as a governor of the London School of Economics. I echo many noble Lords across the House, including my noble friends Lord Deben, Lord Cormack and Lord Patten. This is another example of what appears to be an ideologically driven, irrational decision that is pretty impossible to justify. I cannot think of any rationale for risking our position in the Horizon 2020 and Erasmus programmes. This is not required as a result of the EU referendum. The British public surely would not support the UK failing to secure ongoing participation beyond 2020 in these programmes.

Research is a vital investment in our future. Horizon 2020 is open to all and simple. It reduces red tape and allows researchers to launch projects and get results quickly. These programmes allow knowledge exchange and collaboration on innovation and research. Horizon helps entrepreneurs scale up businesses rapidly to establish a global leading position and to improve our industrial base. This is a flagship initiative designed to secure improved global competitiveness. Is this not exactly what we need for our future growth and success with or without Brexit?

This goes beyond funding. It is the spirit of co-operation and leadership that is so important. It gives our students, graduates and entrepreneurs the opportunity to exchange ideas and research collaboratively with other countries. There is no need for the UK to go it alone. There is obvious strength in collaboration. I hope the Minister will take careful note of the strength of feeling across the Committee, including on his own Benches, that we must not countenance whatsoever and under any circumstances turning our back on these programmes. The future of our country, our young generations and our world-beating research and academic institutions must not be put at risk. The UK has far more to lose than the EU if we are no longer a leading participant in these programmes. I hope my noble friend will return on Report with his own proposals to commit to ongoing participation beyond 2020.

[Lord Bilimoria (CB)]

My Lords, the mere fact that we require these amendments is shocking in itself. UK universities receive an additional 15% in funding from the European Union. Academics will now struggle to co-operate on research projects. The change in the visa regime that takes place may deter high-calibre academics from joining British universities. That is happening already. When European universities have a chance to collaborate they already think twice before collaborating with a British university, and that is shameful.

The Erasmus programme is 30 years old. Are we going to throw away 30 years of that wonderful initiative? Hear what the Europeans say:

“‘The absence of physical mobility after Brexit would take us apart’, said João Bacelar, executive manager at the European University Foundation. ‘Student exchange is kind of the antidote to the malaise of Brexit. It is profoundly unfair if young people would pay a price for something they didn’t want’”.


Employers value the Erasmus brand. More than 200,000 British students have benefited from Erasmus. We have heard that other countries that are not part of the European Union can be part of Erasmus. Let us beware of what happened with Switzerland. When Switzerland voted to restrict European migration, it was taken out of the Erasmus programme. It has had to spend extra money to put a new programme in place. Do we want to go through all that? I do not think we should.

The best thing about Erasmus is that it is for everyone. It allows students who cannot afford it to study abroad in a variety of subjects. My noble friend Lady Coussins spoke about language skills. Erasmus involves 725,000 European students annually—a huge number. We do not want to be left out of it. We are the third most popular destination; 30,000 students want to study in Britain and 40,000 of our students are over there. These are huge numbers. If that mobility goes, we are going to suffer.

Will the Government keep their promise to maintain and protect all funding streams for EU projects in the UK? Will they ensure that there is no cliff edge for funding for scientific research at the conclusion of the Brexit negotiations? Will the Government confirm that British researchers must be able to continue to participate in an unrestricted manner in current and future EU science initiatives? Will they never prevent highly skilled scientists coming into this country? I would like that assurance from the Minister.

We have heard time and again about our funding and research power. We have 1% of the world’s population but produce 16% of the most highly cited research articles. That is how good we are. Every committee—including the House of Lords Science and Technology Committee and the House of Commons committee—is saying that this would be damaging for the UK. A recent YouGov survey showed that 76% of non-UK EU academics are already considering leaving the country. What are we doing?

There are two messages here, one about collaboration and the other about funding. As the noble Lord, Lord Patten, said, we get more than we put in. We are asking the Government for a guarantee that we are going to get that funding. But more important than the funding is the power of collaboration. As chancellor of the University of Birmingham, I am proud that it received a Queen’s Anniversary Prize last week. When I was in India, we cited an example of the power of collaboration between the University of Punjab and the University of Birmingham. The University of Birmingham’s field-weighted citation impact is 1.87. The University of Punjab’s is 1.37. When we do collaborative research, it is 5.64. When the University of Birmingham does collaborative research with Harvard University it is 5.69. Its impact in collaboration is three times greater than it is as an individual university, and that applies to all the collaborations that we carry out with programmes such as Horizon.

Finally, this is about universities and our youth. This is depriving them of their future. I speak at schools and universities regularly, and I ask students every single time how many of them, if they were given a choice, would choose to remain in the European Union. Without exaggeration, almost 100% of the hands go up. There are two years’ worth of 16 and 17 year-olds who did not get a say in the wretched referendum two years ago, and this is their future, in which they will want a say. That is what this amendment is about: the future of our youth through Erasmus and Horizon 2020. We cannot take that future away from them. We have to go through with these amendments, and it is most likely we will end up remaining in the European Union.

[Lord Liddle (Lab)]

My Lords, I was not intending to intervene in this interesting discussion, not because I do not care deeply about these issues—as chair of Lancaster University, I realise how much we benefit from both Erasmus and the Horizon programme—but because I had not realised until I heard this excellent debate what a cliff edge these important programmes now face. This really is a very serious matter that has come out this afternoon.

There are two reasons for the cliff edge. First, the European Union, in the Commission, will now be thinking about the next framework programme, which will come in at the start of 2021. It will be devising its priorities and working on the assumption that Britain is not part of the next Horizon programme. That is a very serious point. Secondly, when the Select Committee went to see Mr Barnier last week in the Commission and he set out to us how the Commission envisages the Brexit negotiations, he put dealing with what he calls “future co-operation” in one of the four treaties that are to be negotiated after we have left. That is when he is assuming that these negotiations will start: in March next year, after we have left. One is on foreign policy, one is on security questions, one is on trade and the other is this basket of future co-operation. This is really serious. Unless we set a higher priority, more quickly, to sorting these questions out, we will end up with a lot of loss of initiative and of partnership, and networks in which we are involved no longer being sustained. We have to do something.

What are the Government proposing to do? It occurs to me that the Government, first of all, must make clear now that they want to continue to participate fully in both these programmes. They must make clear now that they are prepared to put a substantial sum of money on the table so that we can continue to participate in these programmes. They should also say, without equivocation, that for anyone from an EU country who has a place at a British university as a student, researcher or lecturer, or at a research institute, there will be no question of there being any additional immigration barriers to them taking up those places after Brexit. Why can that declaration not be made? The money, the free movement, the determination to participate—why can that not be said now? Why can the Government not, in this area, try to speed up Mr Barnier’s timetable by actually tabling their own text of the agreement that they want to reach? I hope the Minister can provide a satisfactory answer to these perfectly reasonable points.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Faulks]

I am grateful for that intervention. I am certainly receptive to the possibility of some restrictions on what the Government can do, but this is far too much of a restriction—it is a complete straitjacket.

[Lord Bilimoria (CB)]

If I may, I shall just reference the former Attorney-General, Dominic Grieve, who wrote recently:

“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.


We have not yet touched on this, but we had the Strathclyde review from the noble Lord, Lord Strathclyde. On 26 October 2015, noble Lords withheld agreements to tax credit regulations and the following day a Motion was moved and narrowly defeated and, therefore, the Prime Minister said that we should review this. The House was criticised for flexing its political muscle and the review said that we should,

“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.

We built up lots of experience with secondary legislation and, of course, the House of Commons is meant to be primary and its will should not be blocked. As the noble Lord, Lord Strathclyde said:

“It would be regrettable if the Lords simply became a highly politicised ‘House of Opposition’”.


We are not a House of opposition; when that happened, it was a rare occurrence for all of us present, because since 1968 there has been a convention that we should not reject statutory instruments. It has very rarely happened. The rejection of the tax credits regulation broke new ground.

So it is much more complicated. There are so many different types of statutory instruments, including super-affirmative, subject to affirmative resolution procedure, subject to negative resolution procedure, laid instruments and unlaid instruments. The noble Lord, Lord Faulks, said that there were already 8,000 statutory instruments in place regarding the European Union. If you look at the number of instruments over the years, it runs into thousands. How many thousand statutory instruments does the Minister predict we will need to implement this Bill?

--- Later in debate ---

[Lord Forsyth of Drumlean (Con)]

I am grateful to the noble Lord for giving way, but does not he see how absurd the argument is that he is putting when these European regulations are matters over which the House of Commons has no choice but to implement? The whole point of this Bill is that it is restoring it to the primacy of Parliament to decide on these regulations.

[Lord Bilimoria]

The noble Lord, Lord Forsyth has great foresight, because I am about to cover that in my speech.

[Baroness Manzoor (Con)]

In terms of limiting the powers of Ministers, is that not within Clause 7? Forgive me if I have misread that, but I refer both to the point that the noble Lord is making and to the point that the noble Lord, Lord Pannick, made earlier.

--- Later in debate ---

[Lord Bilimoria]

With all due respect, that is the whole objective of this—the fact that one can use statutory instruments. Here is the underlying worry—about a Government who have tried to bypass Parliament from the beginning, from the wretched referendum. They tried to implement Article 50 without Parliament. That is a fact. It took an individual—Gina Miller—represented by my brilliant noble friend Lord Pannick, to defeat the Government in the High Court. The Government then appealed to the Supreme Court and were defeated resoundingly—and the noble and learned Lord, Lord Keen, was on the other side.

[Lord Hamilton of Epsom (Con)]

Did the noble Lord think that it was the intention of Miss Gina Miller that, when the House did have a vote, it would actually vote by an overwhelming majority to move Article 50?

[Lord Bilimoria]

I remind the noble Lord that this House, in that Article 50 Bill, had two of the largest votes in the history of the House of Lords; 614 of us voted in one instance and 634 in the other instance. In both instances, we defeated the Government by almost 100 votes. The fact that the House of Commons did not accept that is a different matter—and the point that I am making is that the Government tried to bypass Parliament. There is the worry that statutory instruments bypass Parliament.

Do Henry VIII clauses give Governments the power of royal despots? Well, secondary legislation is used all the time to amend the text of primary legislation in non-despotic ways, as the noble Lord, Lord Faulks, said—they do not have to be. In fact, the biggest Henry VIII section of them all can be found in the European Communities Act 1972—the very piece of legislation that we are repealing.

[Lord Forsyth of Drumlean]

My Lords—

[Lord Bilimoria]

I am coming to the noble Lord, Lord Forsyth—will he please have some patience? Specifically, Section 2(2) of that Act deals with the type of EU legislation and rulings that need to be transposed into UK law. Typically, these involve EU directives where the intended outcome of the law is made clear, but it is up to the individual member states how to implement them. After Brexit, if Brexit happens, the Government want to use a Henry VIII clause in reverse—to adapt EU laws to make them British. For example, disputes that are currently referred to EU regulators or courts will be amended to refer to their British equivalents. The logic of the noble Lord, Lord Forsyth, is that, if you are going to have a swathe of amendments to undo primary legislation that has already been made using secondary legislation, you should make those replacements in the same way. It is not as simple as that; because of the “deficiencies arising from withdrawal”, the references to the EU regulators, the European Court of Justice and other entities will no longer have any sway if there is Brexit. It is not as simple as saying, “Because they are simple things, we just can’t do this”, and the Government saying, “We will just use these Henry VIII powers to tidy up things”. The problem is that it might alter not just technical details but also the substantive effect of the law. These amendments are trying to protect really important issues.

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

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

[Lord Adonis]

My Lords, may I elaborate on the point made by the noble Lord, Lord Pannick and invite the Minister to respond further? A key point in this debate is surely that powers conferred by Parliament should be exercised only as Parliament intended. A key point on paragraph 3 of Schedule 8, which the noble Lord referred us to, is that the power to make and approve subordinate legislation—which is conferred in primary legislation—was, in the case of retained direct EU legislation, originally conferred in the context of directives and legislation which derived from the European Union itself. So the context in which Parliament gave the power to make subordinate legislation was that it should achieve the purposes of the directive.

That being the case, allowing these powers to be used completely independently of those directives significantly enlarges the scope within which those powers can be exercised, which was not intended by Parliament when the powers to grant that subordinate legislation were first conferred. I am not sure that I am carrying the noble Lord, Lord Pannick, with me, but that seems to me to be a crucial aspect of Schedule 8, and it would be good to get the Government’s comments on that.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

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

[Lord Foulkes of Cumnock]

My Lords, one of my comrades, if I may use that word in this place, commented that I was unduly brief in my introduction—or perhaps it was unusually brief; it was one or the other. That was because I stuck precisely to the terms of my amendment. The debate, however, has gone much wider than that. We have heard some powerful, passionate pleas on behalf of the rights of European Union citizens. We have heard them from colleagues on all sides of the House, and it is important to note that it is not just the opposition parties arguing this: support has come from the Cross Benches and from the Conservative Benches.

One of the ironies is that if European Union citizens has been given the right to vote in the referendum—they are taxpayers: “no taxation without representation”—as they were in the Scottish referendum, we would not now be going through this tortuous procedure. We would be getting on with running the country, looking after education, health, justice and all the things we should be doing as the sovereign Parliament.

My noble friend Lady Prosser put it very well: the reputation of the United Kingdom is at stake in all the matters that we are looking at today. The arguments put forward by my colleagues on behalf of all the amendments in the group were very powerful.

[Lord Bilimoria (CB)]

I thank the noble Lord for giving way. Could he add that European Union citizens will be allowed to vote in the forthcoming council elections in May?

[Lord Foulkes of Cumnock]

Indeed, and as I understand it, if I read the Evening Standard right, they are going to send a very strong message as far as London is concerned about what they think of this Government.

I conclude by saying that I wish I was learned as well as noble, like the noble and learned Lord, Lord Keen, because I would then be able to understand some of the detail rather more precisely.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

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

[Lord Lang of Monkton (Con)]

My Lords, I welcome the opportunity to speak to this group of amendments and support those spoken to by the noble Lord, Lord Wilson of Dinton. I congratulate him on how he exposed the ramifications that reach so far into our constitution. It saves me the task of trying to tackle it.

It is a shame that the House is not more fully attended tonight. That is nothing to do with my personal egotism—quite the reverse—but this is such an important subject; I am very glad that we have reached it in the Bill, and it deserves the closest of attention. I speak in support of Amendments 71 and 72, as well as Amendments 76, 77 and others in this group. In so doing, I am keen to focus less on the Brexit-related provisions than on the constitutional implications of granting Ministers special powers to undertake the Bill’s purpose, while not limiting and containing such powers and enhancing scrutiny of the resultant secondary legislation.

The amendments themselves rein in Ministers’ powers from when they are appropriate to only when they are necessary, and are very straightforward. In the case of the amendment yet to be spoken to by my noble friend Lord Hailsham, “essential” is injected into the proceedings as well, giving a threefold choice to your Lordships. However, it is a transparent illustration of why the amendments are needed. “Appropriate” is so bland, broad and subjective as to be almost meaningless, as has been said, and it gives the Minister excessive influence and discretion. “Necessary”, by contrast, is more specific and requires justification—and I believe that the courts prefer to handle litigation over “necessary” than “appropriate”, for reasons one can understand. Clause 7 is stuffed with powers that need to be addressed in this way. It is time limited to some extent by subsection (8). I welcome that, and I welcome in passing the concession on sifting granted by my noble friend the Leader of the House in her Second Reading speech. But the clause is one that cries out for tighter control and closer scrutiny.

The Constitution Committee reported extensively on the Bill in three volumes—a unique event—so the Government have known for a whole year of the concern that we expressed on such matters and have heard it often repeated since. I am no longer a member of the committee, but I plead guilty to being partly responsible for the first of those three reports. Again unusually, that report was published before even the White Paper was produced, let alone the Bill itself, a procedure that I rather recommend to Select Committees. It makes life very much easier and gives room for one’s imagination to fly. However, the essence of the report was to recognise that the massive task of legislative retrieval would need special powers for Ministers. The Government repeated that in their White Paper and quoted our report in support, but they rather cynically omitted and ignored the vital qualification that we had stressed that such new powers had to be accompanied by tighter controls and the safeguards that we recommended—explanatory memorandums, certification of statutory instruments by Ministers, strengthened scrutiny procedures and so on. I heard the comment that the noble Lord, Lord Wilson, made about the Constitution Committee’s recommendation as an alternative to “appropriate”. I am glad to say, “Not me, guv”—I was off the committee by the time that report came out.

Our recommendations were largely ignored in the first report, such that when the Bill appeared last autumn the Constitution Committee, then under the capable hands of the noble Baroness, Lady Taylor of Bolton, felt obliged to point out that,

“the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”.

Since then, there has been some progress, but not very much and not nearly enough.

The amendments in this group are not just a matter of trivial semantics; they are the granular embodiment in microcosm of a fundamental principle—namely, that one pillar of our democracy is the balance of power between the Executive and Parliament. This Bill, if unamended, would tilt that balance quite heavily towards the Executive. To do that would be to degrade what will be an historic Act in due course and jeopardise the rights of Parliament. These amendments and others to come are not about Brexit itself; Brexit is important and the Bill is vital to help us to secure that. I want it to pass into law and soon. But the amendments are about something every bit as important —who is going to guard the constitution if not this House?

Ministers want their legislation to get through quickly and painlessly; officials are loyal to their Ministers and fancy a quiet life. The other place has an interest, but one that is often secondary to political obligations of Members, and the pressure on them from other events. I hope that my noble friend is listening to this debate and that the Government will at last respond to the case being put to them and respond not just in this clause but throughout the Bill, right up to and including Clause 17, perhaps by reference to changes that they have already agreed to the Sanctions and Anti-Money Laundering Bill. Debate in Committee would then proceed just a little faster.

It falls to us in this House to guard the gate on behalf of Parliament and democracy and to uphold the role of the constitution in protecting both. If the balance between Parliament and the Executive is lost, the rule of law and our freedoms are at risk. The time when we take back control of our laws is not the time to allow the corrosion of our law-making process.

[Lord Bilimoria (CB)]

My Lords, if I may just follow on from the noble Lord, Lord Lang, I often say that this House’s role is to be the guardian of the nation. To build on what the noble Lord, Lord Wilson, said, when we go back to the beginning of all this—the referendum—it was all about taking back control and sovereignty and not bypassing Parliament. What happened with Article 50? The Government tried to bypass Parliament. Now we have this withdrawal Bill, giving powers to make and amend law. As the noble Lord, Lord Wilson, said, there are over 100 Ministers, and it can be delegated to government departments—once again trying to bypass Parliament.

Under an earlier amendment, I quoted Dominic Grieve, a former Attorney-General, who recently said:

“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.


That is a former Attorney-General from the government party.

Then there was the Strathclyde review. Let us not forget what happened in 2015 when this House was criticised for flexing its political muscle. The review said that we should,

“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.

We were openly bullied and told, “Don’t you dare challenge a statutory instrument again”. In fact, I remember in that debate, the Government went so far as to say, “You are threatening the very existence of this House if you threaten us any more”. Now we have the potential for thousands and thousands of statutory instruments. Are we going to challenge every one of them and threaten our very existence every day? Do Henry VIII clauses give Governments the power of royal despots?

--- Later in debate ---

[Viscount Hailsham]

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

[Lord Bilimoria]

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

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

[Lord Beith (LD)]

My Lords, from this side of the Committee I shall speak to Amendment 244A, in my name, which comes from the Constitution Committee and was mentioned by the noble Lord, Lord Wilson, in his opening remarks. The amendment’s purpose is to provide a more objective test and a requirement for Ministers to state that they have applied an objective test. Should they have failed to do so, they become accountable for not having done so. That is the value of it. It is in no way exclusive of the series of amendments in the remainder of the group, almost all of which replace “appropriate” with “necessary”. I will come to that in a moment. I want to appreciate the words a few moments ago from the noble Lord who is the former—and much respected—chairman of the Constitution Committee. His contribution is one that Ministers really ought to note.

We are dealing with wording in this legislation that worries us enough in this context. However, noble Lords should be in no doubt that, if this wording remains in this legislation, subsequent debates will take place around the idea that, “It was included in the withdrawal Bill and there were some very serious issues raised in that, so it must be acceptable” and that it must be reasonable to use such a shallow test of appropriateness for very far-reaching statutory instrument powers. Numerous other Bills will come before us in the course of this Parliament which have statutory instrument powers in them, and this and future Governments will draw on the precedent of how this legislation is worded.

As to the distinction between “appropriate” and “necessary”, the suggestion I have heard that Ministers do not realise they are open to legal challenge is, I think, quite wrong. Ministers are well aware that they might be open to legal challenge, and that is why they prefer “appropriate” to “necessary”. It gives them a “plump legal cushion”—that wonderful expression of the noble Lord, Lord Wilson—behind which they can hide. It is just not good enough; we have to find better wording. If Ministers are unhappy with necessity, they must come up with something more effective. We find the word “appropriate” used in many contexts. It conjures to mind the sort of instructions for a day out that say “Appropriate footwear should be worn”. That clearly indicates to the person who has to make the decision that they have a fair degree of discretion—it could mean hiking boots or other firm-soled shoes, as long as it is not stilettos or ballet pumps. They have a choice. Ministers are desperately trying to preserve choice for when they bring forward statutory instruments under this legislation.

The problems of the statutory instruments are not confined to Henry VIII provisions, as the noble Viscount, Lord Hailsham, pointed out. There is the inability to amend any of these statutory instruments, whether they are Henry VIII in their impact or whether they impact merely on previous statutory instruments. The inability to amend them grossly weakens Parliament’s ability to deal with matters that would normally be in primary legislation.

I am not only sympathetic to the amendment that the committee itself has put forward, which has my name on it, or something like it, but I am also very supportive of the attempt to find a better word than “appropriate”. So far, at any rate, necessity seems the right provision.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

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

[Lord Bradshaw (LD)]

My Lords, the logistics industry permeates all our lives. It dominates retailing and allows most sophisticated industries, such as the motor industry, to organise themselves on a multisite basis. When we buy something in most shops, we start a process which means that our purchase will trigger the order for a replacement, stretching back to the manufacturer or supplier. This arrangement has become very much more sophisticated since we joined the EU 44 years ago. Supplies of parts flow through a network as complicated as a spider’s web, throughout the community and beyond. This is what makes your orange appear at breakfast or your new car come off the production line.

We are told in ever shriller tones by the logistics industry and its customers that the survival of that system depends upon frictionless trade: no stops at borders, no need to provide documentation and no tariffs—they are the words of the Freight Transport Association. The industry was lured into a state of complacency by the assurances of Ministers that this “frictionless” trade would continue after March 2019, which is less than a year away. However, that complacency is swiftly turning to panic as it becomes evident that the assurances offered concerning frictionless trade are becoming less likely to be realised. Trade deals, even if these could be negotiated, seem a very distant prospect. Your orange at breakfast has to come from Spain, and the parts to make and deliver your Mini need to arrive at Cowley every 20 minutes or the production line stops. The prospect of empty shelves in the shops, as witnessed recently due to the weather, becomes almost a certainty.

If there is any interruption at ports or similar points of entry and exit, I suggest that people’s anger with those politicians who have sold them a false prospectus will be deep and severe. If people are unable to obtain the supplies of groceries to which they have become accustomed, or workers in factories that cannot get a time-critical supply of spare parts are laid off, there will be trouble. The chance of protests in the streets as these shortages become apparent should be taken far more seriously than the suggestion of a popular uprising if the concept of Brexit is eventually frustrated. The mantra “Europe needs us more than we need them” is perhaps best not put to the test, as there will be those doing business here who decide to seek the certainty of closer union with the EU by moving their operations within its borders. The future of the aircraft construction industry is an example.

The logistics problem is very serious in respect of Ireland, to which the noble Lord, Lord Berkeley, has referred. A very large amount of perishable material has to transit via Great Britain on its way to and from Europe. If any border checks are necessary to secure passage at either Holyhead and Dover—probably both, as things stand—there will be serious implications for that trade, and it will surely lead to the establishment of direct ferry links between the Republic and Europe to avoid using those at Dover or other crossing points. At this moment the Government of the Republic are giving serious consideration to that possibility.

Maybe those in the logistics industries—notably the ports industry, the Freight Transport Association and the Road Haulage Association—have kept quiet until now because they have always trusted and supported the party opposite and have trusted the assurances of David Davis and Liam Fox. That misplaced loyalty is about to be tested, possibly to the point where these businesses suffer permanent damage. The purpose of the amendments is to seek from the Government, at this late stage, the humility to accept that the promises about frictionless trade cannot be delivered and to bring back on Report a plan to keep Britain working and supplied in the present just-in-time way, or they face a defeat in this House on Report. As the Freight Transport Association said, the trailer registration Bill, to which the noble Lord, Lord Berkeley, referred, which is coming back to your Lordships’ House in Committee, is not a viable solution.

As the Prime Minister said only last week, we need certainty. I submit to your Lordships that we are as far from that as ever.

[Lord Bilimoria (CB)]

My Lords, I put my name to both the amendments and I would like to build on what the noble Lords, Lord Berkeley and Lord Bradshaw, said. Some 70% of the UK’s food imports by value are from the EU, and 60% to 65% of the UK’s agricultural exports are to other member states. Any risk of delays would put a strain on our supply chains and would probably raise food prices.

The Channel Tunnel illustrates how important timing is: 1.4 million trucks and 2,900 rail freight trains went through in 2014, transporting approaching £100 billion-worth of goods between the UK and the continent, including almost £200 million-worth of iron, steel and metal products from Yorkshire and the Humber. The time saved by using the Channel Tunnel was equivalent to 120,000 days in 2014, saving a lot of money on each crossing. So any delays and any more customs checks would up-end such financial projections and have downstream consequences.

One whole aspect of Brexit is the huge complexity caused. The amendments highlight the impact that it will have not just on our freight industry but on as us a public. The list of border operations includes revenue collection, safety and security, environment and health, consumer protection and trade policy. Modern customs systems have to balance providing security with facilitating the free flow of goods. Some 37 million tonnes of trade a year pass through Southampton alone, including more than 1 million containers. How could you possibly inspect every container? It would just create delays and blockages.

Of the freight transport that goes in and out of the UK, 69% of that going to the EU is lorry traffic, whereas 99% of non-EU is containers. Of the EU share, between 75% and 100% of lorry traffic goes through Dover, the Channel Tunnel, Harwich and Holyhead. We cannot possibly have any delays that will make life more difficult for our businesses. I just mentioned the requirement for food products. Ireland and the British land bridge have also been mentioned. We will be talking about air transport later, and rail in more detail.

The UK will not be deemed a third country until the end of any transition period, if one exists. Even if the UK were to remain in the customs union with the EU, it would still be a third country and goods would be subject to checks. Freight using the UK land bridge will effectively be subject to non-tariff barriers—people always miss the non-tariff barriers.

Brexit will cause one disaster after another in this area. Customs’ rule of thumb is that 2% of cargo coming from third countries is subject to physical exam, while 4% to 6% of such cargo is subject to documentary checks. However, the Department of Agriculture is obliged to check up to 50% of food and other products that contain an element of food, such as cosmetics, pharma or medical devices. There is a 100% check on animals, including pets. This is how complicated this whole area is. Revenue will prepare a list of approved customs courses for use by traders. Traders should apply for customs registration numbers. This will be absolutely disastrous; I do not think people have comprehended how difficult it will be.

As the noble Lord, Lord Bradshaw, mentioned, 50% of FTA members operate more than 200,000 lorries: almost half the UK fleet. FTA members represent 90% of freight moved by rail. FTA members consign 70% of UK visible exports by sea and 70% of UK visible exports by air. They speak for this industry. If we do not listen to them, we are not listening to the people who do this. How UK companies get goods to and from the continent in the future will be a matter for EU negotiations, but the changes to border controls and customs will impact our transport efficiency. There is no denying that. At the moment there is frictionless movement of goods to and from the UK. Unless a solution can be agreed as a free-trade agreement when the UK moves outside the single market and the customs union, that will change.

--- Later in debate ---

[Lord Bilimoria]

If noble Lords do not like facing reality, they can cheer, but I am talking about this reality as a businessman who imports from and exports to Europe. I will be affected, my consumers will be affected and our citizens will be affected. Noble Lords can laugh as much as they want, but this is the reality.

Aidan Flynn wanted the prospect of a deal. This is the quote:

“We’re all looking for transition, in terms of whatever changes are going to be required … but effectively, if there’s no likelihood of a plan by October 2018 in terms of UK-EU negotiations you’re going to be without a doubt going into … a cliff-edge situation”.

[Lord Robathan (Con)]

My Lords, the noble Lord, Lord Berkeley, raised a very important point about freight transport crossing the border between the Republic of Ireland and Northern Ireland. It is a very legitimate issue to raise and I hope the Government will listen. He also identified that, of course, this can be solved with modern IT.

I want to bring the House’s attention to the reality of the border in Northern Ireland. I was working in the Northern Ireland Office just over three years ago. I said to my office, “I’d like to go to South Armagh”. They said, “Well, Minister, that’s a frightfully bad thing to do”, but I went. Noble Lords may know that South Armagh used to be referred to as “bandit country”. Let me tell you, three and a half years ago, it certainly still was. I was with a lot of police, with a helicopter going overhead; the police still fear for their lives there because there are booby traps and things laid for them.

I particularly want to focus on smuggling. We followed a lorry on one of the little lanes from the Republic into the north. We did not stop, but the police said, “That’ll be smuggling”. We saw the impact of smuggling diesel, because there are different duties in the south and the north; huge amounts of diesel are imported from the south to the north, including a lot of red diesel that is then cleaned—sorry, has the red taken out of it—and has a huge environmental impact. There are still different subsidies there. Cattle get smuggled back and forth across the border because a lot of money can be made through smuggling across the border. There are two different customs so, of course, there are customs officers on the border; not sitting in posts, as they used to be, but still down there. They do not do much, it has to be said; there is less to do because we are part of a single market. There are, I believe, 275 different crossing points between the south and the north of Ireland, on a border of some 305 miles. Between 1922 and 1972, it was never possible to police everyone. During the Troubles—I served out there for a bit—it was not possible to stop terrorists crossing the border. We used to put concrete blocks and everything at the border, but it did not work; people came across the border.

I also remind noble Lords that there are different currency units: Ireland uses the euro but we use the pound. People manage to get past this quite easily and they will manage to do so in future as well. People say that the border in Ireland is a huge problem; it will only be a problem when we leave the European Union if people wish it to be so. It does not have to be so; good will and common sense on both sides will show that it is not beyond the wit of man for Northern Ireland and the Republic of Ireland to co-exist quite happily and trade with each other—as they did before 1922, between 1922 and 1972, and since.

--- Later in debate ---

[Lord Berkeley]

My Lords, I shall be brief on this amendment because the Minister has almost answered some of the questions. However, it is worth reminding the Committee that the Prime Minister has talked about how she is keen that the various agencies should continue to exist after Brexit. I have not seen anything about the European Union Agency for Railways, as it is now called. It is vital that we have this agency.

We have only one link across the Channel at the moment. Last week DG MOVE at the Commission produced a paper which goes into great detail about what we cannot have after we have left. It is a pity that we do not have a response to it. That includes our UK-registered train drivers who will not able to operate in France or anywhere else unless they pass the test in France. The same applies to approvals for equipment that is manufactured over here if it is not produced to the same standard. This could be a complete disaster, and it will be a great shame if we cannot maintain our involvement with the European railways agency because some of us have spent the past 10 years trying to have one technical agency that covers all the railways in Europe rather than having 25 different ones, which is what we had before.

I hope that when the noble Lord comes to respond, he will be able to give us some warm words about how we can retain our involvement with the European railways agency and sort out all the different issues around standards, drivers’ approvals, rolling stock approvals and everything else. I declare an interest as the chairman of the Rail Freight Group, and we do want to see rail freight and Eurostar continuing their services after March next year. I beg to move.

[Lord Bilimoria]

My Lords, I added my name to the amendment to note that rail contributes £85 billion of extra economic benefit to the British economy. About 41,000 of the 240,000 people who work in the rail industry are EU nationals. To make this point, the amendments basically say that we have to adhere to the European Union Agency for Railways, which has EU-wide responsibility for implementing the technical aspects of railway legislation. This cannot be under- estimated because it encompasses safety, specifications of interoperability—TSIs—and a common verification process for infrastructure and rolling stock. Most railway industry manufacturers have standard products designed for supply across the whole of the EU, in line with these requirements.

--- Later in debate ---

[Lord Bilimoria]

My Lords, I have put my name to these amendments. It should be emphasised that the European common aviation area, or what we refer to as the single European sky, should not be taken for granted. Any British airline can fly anywhere it likes in the EU—not just to but within another member state—and sell tickets to anyone in the 28 member states, without restriction. The aviation industry contributes £52 billion to our economy and, as we have heard from the noble Baroness, Lady Randerson, it leads to cheaper fares, better consumer protection and compensation, and a greater variety of destinations. There is of course the environmental aspect as well.

Does the Minister accept that, if we retain access to the single skies, it would require accepting the jurisdiction of the European Court of Justice, which is one of the Government’s red lines? Does he also realise that there is no fallback on the WTO in the aviation sector? In fact, Tim Alderslade, the chief executive of Airlines UK, has said:

“The Government is fully aware that aviation sits outside”,


the WTO system. He continued:

“The principle of ‘no deal is better than a bad deal’ does not apply to us”.


So whatever happens, the airline industry needs a deal. It cannot have any limits to capacity. Already, easyJet has said that it has applied for a licence in Austria to set up easyJet Europe. As we have also heard, airlines plan their schedules up to a year in advance. Can you imagine if the situation with Ryanair was happening today? How will we cope with that across the sector if we do not come to an agreement?

This whole aspect really keeps us connected to these countries; the administration and infrastructure run like clockwork. However, I have looked at a table of the Brexit impacts under different scenarios. It lists eight scenarios, five of which would not be allowed any more. An EEA airline flying from a third EEA country to the UK, for example Air France flying from Berlin to London, would no longer be allowed. A non-UK airline flying from the UK to a third EEA country, such as Ryanair flying to France, would no longer be allowed, and nor would a UK airline flying between two EEA countries. A UK airline flying within an EEA country or an EEA airline flying within the UK, such as Ryanair flying from London to Glasgow, would no longer be allowed; nor would a US or EEA airline using the UK as a hub to fly from Europe to the USA, such as American Airlines flying from New York to Heathrow and continuing on to Rome. We take this all completely for granted but it will no longer be available to us.

According to Ministers, 35 separate pieces of EU legislation work together to make the EU’s aviation single market. This is separate from the single market in goods and services and continued membership for the UK, or alternative arrangements, will be needed. What can we do? As a result of its membership, UK airlines benefit from 42 air services agreements entered into by the EU with countries outside the European Union, including the United States and China. This is what open skies is all about: it has allowed European majority-owned airlines to fly between places within any EU country, not only between the home country and another EU country.

We have also heard about the common regulator, the European Aviation Safety Agency. The UK has been a really proactive member of that organisation. It has been a leading member of it because it has brought benefits to the UK and to Europe. Security is also going to be really important and difficult—as will future border and visa arrangements.

In the longer term, unhindered access to EU aviation is absolutely essential. Benefits have been derived from open skies and a more restricted market would be disastrous. The transport regulations are most comprehensive. They provide for compensation, reimbursement and protection from overbooking. A large part of this is European Court of Justice law. Passengers are protected when they take off from an EU airport or land at one, provided that the carrier is an EU carrier. These are all issues that we take for granted, but if we do not look at these amendments it will be another way in which the whole economy and all our citizens and businesses will be damaged.

I shall conclude by quoting Andrew Haines, chief executive of the UK Civil Aviation Authority:

“Let’s just imagine the UK was to withdraw from EASA altogether and adopt our own framework–although I’m yet to meet anyone of substance that supports that approach. It is, of course, theoretically possible and let’s just suppose we established the best aviation safety regimes in the world. It would mean a major increase in UK regulatory regime, potentially represent a major barrier to track increased costs and yet we would also risk becoming a backwater in terms of wider impact”.


A backwater—that is where we are heading.

[Lord Liddle]

I congratulate the noble Lord, Lord Bilimoria, once again on an excellent speech raising many serious issues which we have to deal with. I shall draw particular attention to Amendment 233, which asks that any amendments to the roles and responsibilities of the European Aviation Safety Agency should be subject to the affirmative procedure. I would like a response from the Minister. I see no reason why the Government cannot just agree to that now to assure the Committee that there will be full accountability on these questions. Why not just say, “Yes, we agree to that”?

--- Later in debate ---

The UK has been and is influential within EASA. UK expertise has contributed significantly to the high standards of aviation safety in Europe. The harmonised aviation safety regime has raised standards across Europe, as the noble Lord, Lord Tunnicliffe, has pointed out: facilitated the development of integrated cross-border supply chains and supported the growth of the European aerospace industry. The UK’s continued participation in the EASA system is beneficial not just for us but for the rest of the EU. The UK, with the second largest aerospace sector in the world, supplies vital components to aerospace exporters within the EU, and EASA itself benefits from the UK’s expertise and technical input, with roughly 40% of the expertise in the EASA system coming from the UK. The UK is committed to maintaining high standards of aviation safety, and the Government want to avoid disrupting trade or imposing additional regulatory burdens on industry in the UK or the EU. The precise form and nature of the UK’s future relationship—

[Lord Bilimoria]

I thank the Minister for giving way. I just want to clarify that he is accepting that by remaining in EASA we will have to submit to the European Court of Justice, and therefore the red line does not exist any more.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I listened to the noble Lords, Lord Kerr and Lord Patten, with much interest and even pleasure. They are virtuosi—but as I sometimes find when I listen to virtuosi, they are not entirely convincing. Amendment 4 is simply too vague for us to send it to the other place. If those who tabled it insist that the Government should seek to negotiate membership of a customs union, it behoves them to be specific about the features of the customs union that they believe would be appropriate in the interests of our country.

Let us be clear that we all want continuing free movement of goods between this country and the European Union. That is not in contention; it is a major objective of the Government in their negotiations. Those who support the amendment, which refers to “a customs union”, not to the existing customs union, should explain how the alternative customs union that they envisage would differ from the existing customs union.

For example, how would it differ with regard to the common external tariff, which the noble Lord, Lord Lamont, has just mentioned? At what level do those who tabled the amendment think the CET should be pitched? A common external tariff is protectionist, and as such is bad for the efficiency and productivity of our industries. It puts up the prices of goods imported from outside the European Union into the United Kingdom, to the disadvantage of our consumers and our producers: 21% of household incomes in this country are, on average, spent on food, clothing and footwear. Indeed, a higher percentage is spent by less well-off households. The existing customs union puts high tariffs on these essentials: 26% on food, 11.8% on clothing and 11.4% on footwear, on average. Also objectionable about the common external tariff is the fact that, as a barrier to imports from developing countries, it impairs their economic development. The European Union’s average external tariff is 5.1%. That is high compared with the USA’s external tariff of 3.5%. Noble Lords insist that the Government should state their precise objectives in negotiation. Will they state theirs? What should the common external tariff be? Do they envisage a customs union without a common external tariff? That would be very good, but is it in the realm of possibility? Is it not, in fact, better to seek to negotiate a free trade agreement?

If the new customs union to be negotiated differs from the existing customs union, how would it solve the problem of the border between Northern Ireland and the Republic? Noble Lords should explain that. How would the two sets of rules of the new customs union and the existing customs union of the EU interact? What dispute resolution mechanism do they intend?

Do they think that the European Union would accept a radically liberalised form of customs union with the United Kingdom and allow us such enhanced freedoms? It would be lovely, but it seems unlikely. However, unless they do and can say how their alternative customs union would work, we have to conclude that the amendment is tabled simply for tactical reasons, a device, as the noble Lord, Lord Wigley, candidly acknowledged, to enable the House of Commons to have a debate and vote on a customs union. Actually, what they clearly want is for us to stay in the existing customs union.

If we send an amendment to the other place, it will be amendable. Amendments to a vague amendment could go anywhere. Some noble Lords—I certainly exonerate my noble friends on the Opposition Front Bench—entertain the hope that a cross-party combination of remainers could force the Government to commit to staying permanently in the existing customs union, with all the disadvantages that the noble Lord, Lord Lamont, and others have described, including our inability to strike free trade agreements with other countries. As the noble Lord, Lord Lamont, reminded us, a customs union is in practice inextricable from a single market and from compliance with a whole mass of European Union rules on which we would have no say. I fail to see how that is reconcilable with our democratic values.

Only today in the Times it is reported that there is just such a manoeuvre of Members of Parliament to form a cross-party alliance and to force this issue. Noble Lords who support this amendment should come clean and say what the game is. It is not appropriate that we should write into statute vague amendments and tactical devices.

[Lord Bilimoria (CB)]

My Lords, the noble Lords, Lord Howarth and Lord Lamont, have given the other side of the argument to what the noble Lords, Lord Patten and Lord Kerr, have proposed. Of course, the European Union is not perfect; of course, with the customs union, there will be disadvantages and advantages, but the bottom line is this: whether free trade between the UK and the EU is 50% or whether it is declining and is now approaching 40%, it is still by far the biggest element of our trade. To have duty-free free movement within that customs union is a huge advantage—that is point number one, before you look at anything outside the European Union.

Then there is this whole talk about going global. What a lot of nonsense. We have always been a global trading nation; we have always been an open economy, an open market, and respected for it, which is why we are a recipient of among the highest levels of inward investment in the world. On the point made by the noble Lord, Lord Patten, about this taking time, the Canadian free trade deal, CETA, took eight years; it is also, to my knowledge, thousands of pages’ long. It is nowhere near as good as the free trade agreement that we have at the moment with the European Union. Our other 53 agreements representing almost 20% of our trade beyond the European Union are good but nowhere near as good as that with the European Union. We cannot just substitute them. The noble Lord, Lord Patten, gave as just one example the South Korean deal, where they say, “Don’t expect us just to roll over—65 million versus 500 million. No, it is a different deal altogether”.

CHOGM—the Commonwealth Heads of Government Meeting—is taking place here. I would love to do more business with the Commonwealth— 2.4 billion people; India has 1.25 billion people. What is our total trade with the Commonwealth at the moment? It is 9% of our trade—9% versus the 50% that we have with the European Union. Let us get real. We would love to do more with India—I am the founding chairman of the UK India Business Council. How many free trade deals does India have with any country in the world on a bilateral basis? It has nine, and not one with a western country. Here is the crux of it; I know this from the horse’s mouth—Prime Minister Narendra Modi is over here in the UK today. If you ask India what its priority is, an EU-India free trade agreement or a UK-India free trade agreement, you will be told that an EU-India agreement is much more important to India and it has been working on it for several years.

On the referendum and the point about the manifesto, when people voted to leave, they did not vote to leave on any basis. They did not vote, saying, “Please leave the customs union”. The red lines of leaving the single market and leaving the customs union were put down by the Prime Minister, not by the people who voted to leave: they did not say on what basis to leave. Our job as Parliament, what we are trying to do here, is damage limitation. This amendment is about damage limitation, because the best thing by far is to remain within the customs union—for our economy, for our businesses, for our citizens and for our country.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

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

[Baroness Falkner of Margravine]

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

[Lord Bilimoria (CB)]

My Lords, I want to emphasise and back up what my noble friend Lord Lisvane has said. In essence, this “necessary” versus “appropriate” is about taking back control for Parliament. Since the referendum, we have seen the Government trying to bypass Parliament time and again. Starting with Article 50, Parliament was bypassed until that had to be taken to court. Going back to the Strathclyde review in 2015, we were told very clearly that it is a convention that this House does not challenge statutory instruments. So by agreeing to this “necessary” we are saying that they can be used but only if necessary.

The Government argue that they need the flexibility if it is appropriate to tidy things up. Who is taking the decision on whether something is appropriate? Today it is Theresa May as Prime Minister. Tomorrow it may be Jacob Rees-Mogg, Boris Johnson or Jeremy Corbyn. This is about the Government, the judiciary, the legislature and, without a written constitution, the very delicate balance that needs to be respected. We need to protect that, which is why we need this amendment; otherwise, we will keep hearing threats from Jacob Rees-Mogg saying that we are burning down this House. That is the wrong way to go. This is not about Henry VIII powers or the Government getting power; it is about power coming back to Parliament and actually giving power to the people.

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

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

[Lord Howard of Lympne]

If the noble Lord waits until I have concluded my remarks, I think he will be better able to form a judgment about how careless I have been.

Subsection (1) of the new clause provides that the Government may conclude an agreement only if the draft has been approved by the House of the Commons and has been subject to the consideration of a Motion in your Lordships’ House. The Minister may have something to say about the circumstances in which such a Motion might be considered. It is not a point I intend to dwell on, although there is clearly a possibility that your Lordships may vote not to consider such a Motion.

Subsection (3) of the new clause provides that a withdrawal agreement may be implemented only if it has been approved by an Act of Parliament, and subsection (7) provides that that Act must have received Royal Assent by the end of next January, so the new clause expressly contemplates a situation in which the Government have reached an agreement with the European Union, the House of Commons has approved that agreement, but your Lordships’ House, simply by delaying the passage of the Bill beyond next January, could defy not only the will of the people but the will of the elected Chamber of Parliament. If that would not provide a constitutional crisis, I do not know what would.

The new clause goes on to provide a prescription about what would happen if such a situation were to arise. It proposes that the negotiations should be taken out of the hands of the elected Government of our country and be decided on a resolution of the other place and the consideration of a Motion in your Lordships’ House. I had the great privilege of serving in the other place for 27 years—not quite as long as my noble friend, but almost—and I have the greatest respect for it, but it is not a negotiating body. I do not believe it has ever taken that role upon itself, I do not believe it wants it and nor should it have it. I need hardly add that if this new clause were to become law, the situation would arise that it would immeasurably weaken the Government’s negotiating position with the EU and would make our Government and our country a laughing stock.

The truth of the matter is that, while a great deal has been spoken about the House of Commons—my noble friend talked about the House of Commons—at the end of the day the House of Commons will have its say and the House of Commons will have its way. The House of Commons does not need to be given any guidance by your Lordships’ House as to how it should go about its business. There are many ways in which the House of Commons can achieve that objective, and the House of Commons will do so.

This new clause is thoroughly and fundamentally misconceived. I am afraid that it illustrates the appalling lengths to which die-hard remainers are prepared to go to achieve their aim, and I urge your Lordships to reject it.

[Lord Bilimoria (CB)]

My Lords, as an answer to what the noble Lord, Lord Howard, has just said, the noble Viscount, Lord Hailsham, said in moving the amendment that this was all about “Take it or leave it”. Is “Take it or leave it” a meaningful vote? Throughout Committee, the main answer given by the Government was, “We are implementing and executing the will of the people”, while every single day the press says, “Implement the will of those 17.4 million people”. But, as the noble Viscount said, “Leave, whatever the terms”—is that what the people actually said? Is that what is in the national interest?

At the heart of this issue is the fact that in the other place at the time of the referendum two-thirds of MPs, on all estimates, thought that the best thing for this country would be to remain, and right here in this House about 75% thought the same. Yet when the referendum took place, hundreds of those MPs’ constituencies voted to leave, so the MPs are caught in a trap. The confusion is whether they see themselves as delegates or representatives of their constituencies. Are they making these decisions in the best interests of their constituents and country or of their party? Are they managers or leaders? The difference between a manager and a leader is that a manager does things right but a leader does the right thing. Do they have the guts—the guts of the so-called mutineers such as Nicky Morgan, Ken Clarke, Dominic Grieve, Jonathan Djanogly and Tom Tugendhat, and I could go on—to stand up when the time comes to do the right thing?

We discovered in Committee that whether we were discussing borders, education or movement of people, no argument was made. The Government were like a stuck record, simply saying: “The will of the people”. The amendment would give MPs in the other place and this House the power to stand up to do the right thing for the country. The noble Lord, Lord Howard, talked about a constitutional crisis. What constitution do we have where a Government bully Parliament and say, “Take it or leave it”? It is Parliament that should be supreme, in the best interests of the people and the country. Thanks to this amendment, Parliament would have the ability to stop the train crash that is Brexit.

[Lord Howarth of Newport (Lab)]

My Lords, the noble Lord, Lord Howard of Lympne, is absolutely right to draw our attention to the constitutional dangers that lurk within the amendment. It goes too far to bind the Government.

I think it is time that we drew breath. We have had a very exciting couple of weeks but it is time to think about the respective roles of the Executive and Parliament and of the House of Commons and the House of Lords, as other noble Lords who have spoken have done. Parliament is not the Government and it should not try to usurp their role. Of course the Government emanate from Parliament and are accountable to it, the Government should be advised by Parliament and are invigilated and sustained by it, and if they lose the confidence of Parliament then they fall, but the Government are not the same as Parliament and Parliament is not the same as the Government. We have a separation of powers. The Government are the Executive, and Parliament neither can nor should act as the Executive.

It was improper and inept for the Government ever to suppose that they could bypass Parliament in dealing with Brexit. Of course there must be a meaningful vote, but it is for the Government to negotiate, listening all the time to Parliament—Parliament constantly proffers its advice—and then eventually to submit the deal that they have negotiated to Parliament for its approval or otherwise. You can call it a take-it-or-leave-it vote, but nobody could say that that is not a meaningful vote.

Dominic Grieve, someone for whom I have the greatest respect and the warmest regard, justified his amendment to Clause 9, requiring that the final terms of the deal should be approved by a statute, on the basis that it was essential to prevent the Government exercising the biggest Henry VIII power ever. That was an understandable and legitimate motive, but to require that the deal should be approved by the laborious process of statute seems to me to go too far in an inappropriate direction. Parliament cannot negotiate. Parliament certainly cannot negotiate by legislation or amendment. It cannot change the deal, it cannot bind the European Union. It can bind the Government in an excessively narrow straitjacket, and that would be an extraordinarily unhelpful thing to do in the national interest. The process of legislating such a statute would serve only to prolong the uncertainty about which everyone complains.

Amendment 49 would develop the Grieve amendment and take it further. It repeats the requirement for a statute already in Clause 9, but doubles up with the requirement for a resolution. It then goes further. Proposed new subsection (5) states that if the House of Commons does not approve the draft terms, the Government “must follow any direction” given by the House of Commons. That seems to me the most extraordinary provision. Of course, legislation routinely binds Governments for the future, but it does not tie their negotiating hand. It should not, specifically, tie this Government’s hands as they seek to perform this particular complex, sensitive, immensely difficult, crucial set of negotiations.

The resolution could say anything. It could say, “Go back to the negotiating table”. It could stipulate that the Government deliver what is undeliverable. It could rescind Article 50. It could call for a general election or another referendum. These are exceedingly important matters where the Government should listen to Parliament, but the Government should lead and Parliament should respond.

If we reflect on the relationship between your Lordships’ House and the House of Commons and our respective responsibilities, surely it is our responsibility to advise the House of Commons, to advise the Government. In the words of the noble Viscount, Lord Hailsham, it is to suggest, to argue, to explain. It is no part of this House’s responsibility to seek to manipulate the House of Commons or the Government, to seek to choreograph future proceedings of the House of Commons, and certainly no part of our responsibility effectively to pull the rug from under the Government.

If we pass this amendment and some of the others on the Marshalled List today, I fear that we shall be getting too big for our constitutional boots, and many of our fellow countrymen feel the same.

--- Later in debate ---

[Lord Grocott]

That £39 billion is a lot less, of course, than the amount we would need to pay in if we remained in for a further 41 years—the figure 41, he may remember, is of particular interest to me.

The other thing I have noticed about so many of these discussions—I have to tie myself down and not jump up every time it is mentioned—is the psychic powers of the remainers, which I am really in awe of. Hardly any remainer I have come across does not know precisely why the leave voters voted the way they did. We keep being told that people definitely did not vote to leave the customs union. People definitely did not vote to leave the single market, we are told. I do not know whether that is true or not—I do not possess these psychic powers—but I can say as a matter of fact that we definitely did not vote to remain in the European Union. That is a certainty as a result of the last referendum.

People say it is not really a second referendum; they are different questions. One question remains on both the referendum we have had and the one that is being proposed. The option to remain is there, so if you did not vote first time to remain, you get a second chance to remain. You do not get a second chance to leave, in a straightforward decision. So I find it increasingly unconvincing that the motives of those seeking a second referendum are an ardent desire to recheck the views of the British public. I think that such an amendment, such an attempt to have a second referendum within two years of the first, is no less than what we all in this House know, remainers and leavers—it is an attempt to reverse the decision of the first referendum. That is unacceptable and we should vote against it.

[Lord Bilimoria]

My Lords, when the noble Lord, Lord Newby, spoke to Amendment 50, he spoke about a spell. I say to the noble Lord, Lord Callanan, that there is one reason why we need this amendment: as he made very clear on the last amendment, the Government are giving us the option of deal or no deal—to crash out on WTO rules. The noble Lord, Lord Butler, said that that was not acceptable. I ask the noble Lord, Lord Grocott, how it can be fair to give people a yes/no vote. The noble Lord, Lord Dobbs, compares it with the AV referendum: that was a very simple result; this is a yes/no, leave on any basis. There is no way that the people would have agreed to that on 23 June 2016 with four months’ notice. It is said that people know the reasons why they left with four months’ notice. We in this House are all in the thick of it, still learning almost two years later. The noble and learned Lord, Lord Brown, said we are all more informed. A year from now, on 29 March, people will be even more informed.

The Government have given people the impression that there is no other option. When I give speeches, such as the one I gave this morning at Imperial College, I ask the audience, if you were given a chance to remain, would you remain? They say, “Do we have a choice?” And all the hands go up saying they want to remain. Yet the Government are driving this Brexit juggernaut off a cliff. When it comes to the British people having a choice as to whether to go over that cliff, the Government say, no, you have no choice, you are like lemmings who will have to follow us over that cliff. Is it fair to the British public? Is this respecting the will of the people? I say that it is disrespecting the British people.

--- Later in debate ---

[Baroness Humphreys (LD)]

My Lords, I was pleased to speak to a similar amendment in the name of the noble Earl, Lord Clancarty, in Committee, and I am equally pleased to support the amendment now. At this point in the evening, I do not intend to detain your Lordships longer than necessary, so my intervention will be short.

All that the amendment asks is that the Government, as part of the withdrawal process, negotiate a continuation of the EU rights that my generation has enjoyed for those under 25. The vital point at the basis of this issue is that the EU passport that we all hold is not just a passport, it is a visa. It is a right to live, work and study in any of the current 28 countries in the EU and to move between those countries at will.

The Government underestimate the frustration and anger that some young people feel at the removal of their rights to freedom of movement and, under Erasmus, to study abroad. On more than one occasion during debate today, Members of your Lordships’ House have referred to the divisions caused by the Brexit vote, but there is no greater potential division than that between the conflicting visions of our country’s future: our young people seeking to move forward in the openness of the EU and some older people seeking the comfort of the past.

Is it not time that the Government showed young people that they understand their concerns? The Government have recently been accused of institutionalised indifference on many issues. Perhaps the amendment affords them the opportunity to disprove that description.

[Lord Bilimoria]

My Lords, I support my noble friend Lord Clancarty on Amendment 60, and speak specifically on the Erasmus programme. I speak as a university chancellor and chair of the advisory board of the Cambridge Judge Business School. The Erasmus programme is 30 years old, and I ask the Minister whether we are to throw away 30 years of that wonderful initiative. Employers—I speak as one—value the Erasmus brand. Hundreds of thousands of British students have benefited from it.

Are we committing to staying in the Erasmus programme well beyond the transition period? Are we committing to it permanently? Otherwise, what happened in Switzerland could happen to us. When Switzerland voted to restrict EU migration, it was taken out of the Erasmus programme. It had to spend extra money to put a new programme in place. Do we want to go through all that?

The most important thing about the Erasmus programme is that it is for everybody. It covers a wide variety of subjects and involves 725,000 European students—a huge number—and Britain is one of the most attractive destinations. Will the Government keep their promise to maintain and protect all funding streams for EU projects in the UK? Most importantly, it enables students who would not otherwise be able to afford it to go and travel and study abroad.

I reiterate what has been said. This is about our youths—and when I speak to students around the country in schools and universities, 100% of them want to remain in the European Union. The least that we can do is to ensure that the Erasmus programme is open to them and not take their future away from them.

--- Later in debate ---

Does the Minister have any comments about this? What is going to happen at the frontiers? We do not know—except that the electronics will probably not work. He may say that we are still in negotiations. I know that lots of civil servants are working very hard, and some of them pretty effectively, to try to find solutions. But the comment that I hear from them is that they cannot really make progress without political direction, of which there is very little. I am offering Ministers a face-saving option. If after two years they have not reached agreement, let us go for the single market. I beg to move.

[Lord Bilimoria]

My Lords, I put my name to this amendment and back up what the noble Lord, Lord Berkeley, has said. In today’s economy, business is integrated and transactions are global, with goods moving across borders every minute of the day. Our biggest customers are right on our doorstep in the EU—27 countries and half our trade. It is not just finished goods, but ingredients and components. In food and drink, my industry, I can give an example. Bailey’s Original Irish Cream is made in Dublin and goes across the border into Northern Ireland. It is bottled there, comes back into Dublin and is exported to the EU and around the world absolutely seamlessly.

Some 2.5 million lorries pass through Dover. How will we cope if there is any disruption over there? Some 70% of the UK’s food imports by value are from the EU, and 60% to 65% of agricultural exports are to other member states. Any delays on these goods, many of which are perishable, would raise food prices. Some 1.5 million trucks go through the Channel Tunnel. The list of border operations is so complex. What preparations have been made if there is to be a hard Brexit to put up all the infrastructure required, prevent any delays and have a frictionless border?

Some 69% of freight transport goes to the EU as lorry traffic. The FTA has spoken out very clearly for the whole industry. It represents 50% of the UK’s lorries and 90% of rail. It has warned very clearly of 15-mile queues at Calais if border checks are introduced. We need to remember what happened in 2015 with the French ferry workers’ strike. If trucks coming from the EU are treated like non-EU trucks, the ports will be in permanent gridlock. Does the Minister agree? The other aspect is Ireland. From Ireland, goods go to Europe across the UK. It takes trucks 10 hours from leaving Dublin to get to Europe. If they had to go around, it would take them 40 hours, with considerable disruption.

I conclude with a point made by the noble Lord, Lord Berkeley. Yesterday, in the Sunday Times there was an article in which a company boss said:

“We suddenly caught Brexit blight”.


The article says that:

“A wrinkle in international trade rules is scaring away companies in Europe from British suppliers”.


It talks about a Bristol-based company where the customers which used to give orders well in advance—in Germany and Scandinavia—are suddenly stopping the orders because of rules of origin. The supply chain is worried about this. The local content will not be of 50% value. With many industries such as the car industry, components that are made in the UK are well below 50%. There are companies here that just do not have the capability to move from under 50% to 50% or 60%. It will take many years to be able to have that capability domestically, and we will not be able to do it competitively.

The article concludes by saying that companies like this one in Bristol,

“will gradually be ‘evolved’ out of the supply chains of EU manufacturers that do not want the hassle of providing paperwork for components bought outside the bloc”.

It will, says the company,

“be death by a thousand cuts”.

That is what we are facing. We had a vote on the customs union in this Bill and it is critical because it marks the frontier between hard Brexit and a soft Brexit.

In the Financial Times recently, one leading British political analyst was asked to predict what would happen. He said that Brexit will not happen because there is no version of Brexit that can get a parliamentary majority. There will be no parliamentary majority if we cannot handle this particular situation in this amendment.

[Lord Liddle (Lab)]

My Lords, I rise briefly to support my noble friend and the noble Lord, Lord Bilimoria, on their remarks. We know that the Government do not have a policy on this issue. We can read in the Financial Times that there will be a great debate tomorrow. The Minister smiles, but he knows perfectly well that it is true that the Government have not resolved the question of what customs model they will go for. This is an extraordinary situation. It is now 22 months since the Brexit vote and yet the Government have not got a policy on the fundamental point of how we will make Brexit work. It is a failure of massive proportions on the Government’s part. I want to hear an apology to business from the Minister for the fact that the Government’s political divisions have basically led to a situation in which business is facing a serious cliff edge. They call themselves the “party of business”. What serious claim have the Benches opposite to be the party of business, given the way they have behaved since the EU referendum?

I also say to my own side that I fully support the amendment we passed on the customs union. I was greatly cheered up by it. It is a breach in this wall of stupidity that the Government have erected, but it is not a complete solution to the business problems that people have talked about. It does not solve entirely the problem of customs checks because of rules of origin and issues with agricultural produce and all the rest. It certainly does not solve the Northern Irish border problem on its own. It does not address the fundamental economic point that it completely neglects services—the dynamic part of our economy where our exports are growing, where we have a strong surplus and which is our economic future. This is a terrible, woeful neglect on the part of the Government of the key, dynamic, entrepreneurial sectors of the British economy. How can they claim to be the party of business?

European Union (Withdrawal) Bill

Lord Bilimoria Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Grocott]

I agree that that is our job. The Government, and the House of Commons, can be asked to think again. However, I hope that the noble Lord, Lord Cormack, and other noble Lords who have made this point on a number of occasions, will agree with the proposition I am about to make. If the Commons does think again on some of these amendments, and sends them back here, our job is then completed. I think that is the consequence of the point made by the noble Lord, Lord Cormack, and is, surely, the way we should proceed.

[Lord Bilimoria (CB)]

At heart, the noble Lord seems to be saying that it is our duty to implement, regardless, the will of the people nearly two years ago. Does he forget that the Government tried to bypass Parliament and implement Article 50, the date of which we are discussing now? They wanted to do it without consulting Parliament, bypassing it and the people. I do not call that democracy or respect for Parliament at all.

[Lord Grocott]

We have had this argument on many occasions. Parliament can do what it wants to do. I repeat that to the noble Lord, but I am sure he understands it. If Parliament thinks that the proposal which is coming before it is so obnoxious, it can throw it out—it can throw the Government out. It has done that during my parliamentary career and that of many other noble Lords. The idea that Parliament is a pathetic institution that needs protecting from the Government of the day is a fundamental misunder- standing of what is meant by parliamentary democracy.

The House can, of course, pass this amendment if that is the wish of the majority, which I suspect it will be. That will make 12 things for the House of Commons to think again about. However, we have to remember that the Bill has to get on the statute book, and in good time. I do not think there is a lawyer here who denies that for a moment. We keep hearing about cliff edges, so far as the economy is concerned. I do not agree with that, but the words “cliff edge” have gained currency. There is no doubt whatever that, if this Bill does not hit the statute book in good time, there will be an undoubted cliff edge for the legal structure and operation of this country, for the meaning of legislation and where European legislation fits into it.

I therefore hope that we will acknowledge that we have certainly done our duty of making the Commons think again—I ask your Lordships not to represent me as saying that we must not make amendments to the Bill; at no stage have I said that and of course I have not, as I have been here for far too long to make that kind of suggestion. However, this is an important Bill which needs to be passed—

--- Later in debate ---

[Lord Forsyth of Drumlean]

No, I did not, and I was not aware that he had done that. I do not think that my noble friend and I would be at loggerheads or in disagreement if I said that the Foreign Secretary does not always get everything right. However, he argues passionately for the democratic mandate which was given to this Parliament and to this Government, and which this Government are determined to carry out.

These amendments are doing no good whatever to this place or to our ability to get the best deal for the British people. If my noble friend Lady Verma said that, like the Prime Minister, she has in all conscience to get the best deal for the country, I suggest that the difference between her and the Prime Minister is that the Prime Minister is elected and the responsibility is hers, and my noble friend should give her her loyalty and support.

[Lord Bilimoria]

My Lords, I have put my name to these amendments, and I will start by putting this in context. When you make a change in business, you do so if there is a burning platform—if you have to make the change—or to make a change for the better, to improve things. Now we keep hearing about equivalence, and about whether we will be able to get terms as good as those we have now when we leave. To follow on from what the noble Lord, Lord Cormack, said, we have heard comments from other members of the Conservative Party, and not just Boris Johnson. Jacob Rees-Mogg has accused the Business Secretary, Greg Clark, of,

“promoting ‘Project Fear’ by saying that thousands of jobs were at risk if Britain did not minimise friction in trade”.

That is the Business Secretary saying that, and it is called Project Fear. Boris Johnson has said that the proposals for a customs partnership after Brexit are “crazy” and that it will not work.

--- Later in debate ---

[Lord Green of Deddington]

Is the noble Lord aware that this was looked at in some detail during the referendum campaign, and the Norwegian experience was that they had to show severe difficulties in their labour market, it had to be reviewed every three months, and they never used it because they feared retaliation? It is not as simple as that; there is a major issue with the EEA, which is freedom of movement, and outside this House it matters.

[Lord Bilimoria]

We all know the noble Lord’s views on migration and immigration, so I will not even bother to go into that.

I go back to some senior Labour figures and supporters, including former shadow Business Secretary Chuka Umunna, who lashed out at his leadership, the TUC, Chris Leslie, the former shadow Chancellor, and Wes Streeting. Even John McDonnell says:

“Respect the referendum result but get the best deal you can to protect our economy and protect our jobs”.


Again, he explained that that meant being in a customs union and remaining,

“close to the single market”.

Why can the Labour Party not get behind this totally? I find it astonishing.

As the noble Lord, Lord Mandelson, said, 80% of our economy is services—the EEA would address the services issue. Financial services account for 12% of Britain’s economy—we would have unfettered access, so all this passporting would be allowed—and 50% of our trade is with the European Union. There is all this talk of going global and agreeing free trade deals with other countries. I have said this before: try agreeing a free trade deal with the USA, or with India without talking about the movement of people. It is all about the movement of people and about tariffs and goods. The CETA with Canada took over seven years to bring about and does not include services. The European Union has said that it is not as easy to get the best free trade deal in the world as Liam Fox has claimed it is. What would Canada say about it? Moving on to equivalence, WTO rules are the worst possible option. I do not think the country would accept crashing out under WTO rules. The no deal option would not be acceptable to Parliament or to the people.

Perhaps the Minister can answer the nub of the point made by the noble Lord, Lord Green. We have no control over our borders, yet a 2004 EU regulation allows all EU countries to repatriate EU nationals after three months if they show that they do not have the means to support themselves. Other countries, such as Belgium, repatriate thousands of people a year. We have never used this regulation, yet we say that we have no control over our borders. Why have we not used it? Why has no one spoken about this in the past?

In conclusion, the best option by far would be to remain. To quote the Financial Times:

“The EEA is not an ideal port for a ship seeking shelter from the worst of the upcoming Brexit storm, but … it may be the only port available … docking in this port is perhaps better for the UK than sailing straight into the storm just because it is exciting, insisting on a perfect port and nothing less, or maintaining that there is no impending storm at all”.


Today is VE Day and we are celebrating peace. There has been peace in the European Union for 70 years. I thank the European Union for that. It is not just down to NATO; the European Union has been responsible for that peace. A Spanish MEP, Esteban González Pons, recently made a very powerful speech in the European Parliament. He said that Europe’s past is war; its future is Brexit. He went on: “Brexit teaches us also that Europe is reversible, that one can go backwards in history … Brexit is the most selfish decision taken since Winston Churchill saved Europe with the blood, sweat and tears of the English. Brexit is the utter lack of solidarity when saying goodbye … Europe is peace after the disasters of war. Europe is forgiveness between the French and Germans … Europe is the fall of the Berlin Wall. Europe is the end of communism … Democracy is Europe. Our fundamental rights. Can we live without all of this? Can we give up all of this?” He went on: “I hope at the next Rome summit we talk less about what Europe owes us and we talk more about what we owe Europe after everything Europe has given us. The European Union is the only spring our continent has lived in its entire history”.

Europe is full of faults but I think it is the best option we have, and the role of this House is to challenge and to bring this up as the least bad option. I recommend the amendment to the House.

--- Later in debate ---

[Lord Bilimoria]

My Lords, briefly, I support the amendment of my noble friend Lord Lisvane who, with his vast experience, has come up with a suggestion that is essential, primarily because I feel that the balance between the Executive and the legislature has been truly tested during these Brexit times. This started with the Government trying to bypass Parliament in implementing Article 50, and then trying to not give Parliament a meaningful vote. At every stage, we have to make sure that the power comes back to Parliament.

The noble Lord, Lord Sharkey, said that the Government estimate that there will be 800 statutory instruments just as a result of the EU withdrawal Bill. How many statutory instruments does the Minister think that there will be in total, as a result of Brexit? I have heard somebody say 2,000, but there may be even more than that. It is therefore all the more important that we have proper scrutiny. We cannot entrust it to the Executive; Parliament has got to have the power, and I support my noble friend Lord Lisvane’s amendment.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I am pleased to support the noble Lord, Lord Lisvane, on Amendment 70. It is a very useful first step and if he presses his amendment I will be pleased to join him in the Lobbies. I shall speak to Amendments 70BA and 70BB, both of which are in this group. I am in a pretty precarious position because I am speaking to amendments to a government amendment which has not yet been moved and is subject to the right of pre-emption. If the noble Lord, Lord Lisvane, wins then I am wasting my time. I do not want to waste the House’s time although I do not mind wasting my own.

I am a member of the Secondary Legislation Scrutiny Committee. I do not speak for that committee but I have been a member of it for some time. These amendments take the last opportunity available to the House to persuade the Leader, who has been attentive to the issue of the extent of the relevant period for consideration, to increase the amount of time available to the Secondary Legislation Scrutiny Committee to 15 days. Amendments would do that in both Houses. It is not often that the House of Lords tells the House of Commons what to do, but it would be inelegant if the two Houses had different sifting periods.

I do not need to explain the role of the Secondary Legislation Scrutiny Committee. Most Members understand that it takes its duties very seriously and is largely trusted to point out matters of concern under the headings available to it to refer statutory instruments to the House. In my experience, it is a much better system than in the House of Commons. The worry of some members of the committee, which I share, is that in dealing with the flow of statutory instruments occasioned by Clauses 7 to 9 of the Bill, we will end up creating precedents which will in the long term dilute the quality of the scrutiny delivered by the Secondary Legislation Scrutiny Committee, and I know the chairman is very concerned about that.

Practical experience of the rhythm of how we deal with the flow of existing regulations shows that 10 days is not enough. It is enough for normal business. If we get the compliance we need from government departments in terms of answers to our queries and dealing with outstanding questions as SIs pass through the process and get expeditious returns, the committee is quite confident that in usual circumstances 10 days would be enough, but it is not enough for exceptional circumstances and there is no provision for exceptional circumstances in the legislation as it stands.

Noble Lords might think that this is a very small point, but if the important amendment moved by the noble Lord, Lord Lisvane, does not find favour with your Lordships’ House, there will be circumstances where Members on the Secondary Legislation Scrutiny Committee will on day 9 in the consideration of some order which is causing them continuing concern be faced with the question of what to do. Do they say they need to take further and better particulars from government departments and take further evidence from witnesses and risk going over the 10-day period, at which point the House’s responsibility for the issue ends as the Government will take the issue back and the SI will become by default a negative instrument, or do they say they are in some doubt about it and so will err on the side of caution? They do not really have the evidence to be sure that the instrument should be upgraded from a sift of a negative to an affirmative, but if I am unsure I will always by default argue within the committee for recommending an upgrade. If that kind of thing happens, it is going to create even more difficulty for business managers. It will not happen every week, or anything like it, but the Government’s wish to get the statute book in good order by exit day is absolutely understood and members of the Secondary Legislation Scrutiny Committee are responsible and diligent and understand the difficulties in doing that, but they are going to be put in a very difficult position.

I do not know where the 10-day limit came from. I think it originally came from the Delegated Powers and Regulatory Reform Committee, but there was no back-up about why it chose 10 days as opposed to 15 days, 13 days or anything else. With the help of the excellent staff of the Secondary Legislation Scrutiny Committee, we have done a grid and have come to the conclusion that it is not possible for the committee to meet twice within 10 days under this new regime, and that will be essential to be sure that exceptional circumstances are dealt with. On the grid we have done, it is clear that 15 days clears us from exceptional circumstances problems. In particular, I am very concerned about consulting devolved legislatures in other parts of the United Kingdom, particularly in relation to Clauses 7 to 9, as this Bill proceeds.

We are taking a big risk. We are going to put at risk the scrutiny process that we rely on day in, day out to keep the quality of the scrutiny process that the House is so rightly concerned about if we do not either make an exception or give some powers for someone to make a case on cause shown for getting an extra couple of days, or an extra five days, on instruments that can be shown to be exceptional. Although the scrutiny committee is doubling its numbers, making provisions and getting support from the Government for doing that, if we do not increase the relevant period for the consideration of sifting, we risk prejudicing the quality of the work that the scrutiny committee can do on behalf of the House in future.