Attorney-General’s Legal Advice

Lord Browne of Ladyton Excerpts

Wednesday 25th September 2019 Lords Chamber

[Earl Howe]

My right honourable and learned friend has said, in terms, that he accepts the court’s judgment—the Government got it wrong. He has been clear that it is now right that we ensure that any future decisions of this nature conform to the judgment of the Supreme Court. If my noble friend is requiring my right honourable and learned friend to make an apology for the legal view that he took during the course of the case, I do not think that is appropriate. The Supreme Court has disagreed with the Government’s legal view, but that is not the same as saying that the Government’s position was not tenable in the first place.

[Lord Browne of Ladyton (Lab)]

My Lords, with respect, the noble Earl, Lord Howe, did not answer the question that the noble Lord, Lord Campbell, asked. The fact is that nobody believes that the Government sought the Prorogation of Parliament to prepare a Queen’s Speech—not even the government Ministers or other people who are peddling this. The evidence that was not the reason was found in the papers presented to the Scottish court, which revealed the real thinking of the Government. The question the noble Lord, Lord Campbell, asked was: why, in the context of the litigation, was no ministerial statement, far less a prime ministerial statement, put before the court to explain in their own words—not through their lawyers— why the Government sought a Prorogation? Why did the Government not have the courage to put that into a statement? Was it fear that government Ministers would perjure themselves if they did this and swore an oath in that statement?

[Earl Howe]

My Lords, I have already given the reason why that did not happen: any advice that was given to the Prime Minister would have been covered by legal privilege, and it was judged inappropriate to disclose anything of that nature to the court. The Government have been clear about why we need a Queen’s Speech—we want to deliver what the public want and we urgently need to consider how to advance that work in advance of a Queen’s Speech. It was against this background that the Prorogation of Parliament was sought.

European Council

Lord Browne of Ladyton Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Evans of Bowes Park]

A press release has indeed been put out about the EU completing preparations for a possible no-deal scenario, but it states:

“The EU will be required to immediately apply its rules and tariffs at its borders with the UK. This includes checks and controls”.

[Lord Browne of Ladyton (Lab)]

My Lords, the noble Baroness has now told us more than once in the context of the Statement that the Government’s priority has been the delivery of a deal. Is it not the case that in yesterday’s Sunday Times the political editor revealed, with the help of one of the noble Baroness’s Cabinet colleagues, the content of a Cabinet minute that showed that the discussion in the Cabinet was about the preservation of the unity of the Conservative Party? This is recorded in a Cabinet minute. Was not something else exercising the mind of the Prime Minister and her Cabinet when they were discussing what to do about Brexit?

[Baroness Evans of Bowes Park]

No, the Prime Minister and the Cabinet have been entirely clear: we want to deliver what is best for the country. That is why we have been working so hard to get a deal that does.

EU Council

Lord Browne of Ladyton Excerpts

Monday 17th December 2018 Lords Chamber

[Baroness Evans of Bowes Park]

We are working hard to ensure that we do get this deal through. Should the House of Commons choose to reject it, however, there is a process set out in legislation. We will follow that.

[Lord Browne of Ladyton (Lab)]

My Lords, in the seventh sentence of this Statement, the Prime Minister said that her,

“Brexit deal includes the deepest security partnership that has ever been agreed with the EU”.

This seems a very odd choice of words, since no such security partnership exists. The political declaration, in paragraphs 80 and following, sets out an ambition to have a broad, deep and comprehensive partnership with the European Union, but that is for negotiation. These paragraphs also make it clear that it will not be as good a partnership as we presently have with the other members of the European Union. Will the Leader of the House confirm that no such partnership exists; that the one we eventually have will be worse than we presently have; and that nobody who voted for Brexit voted for less security?

[Baroness Evans of Bowes Park]

The noble Lord is absolutely right. The political declaration is a declaration of our intentions for our future relationship. It certainly sets out the intention to have the strongest and broadest security relationship between the UK and the EU. Our partnership and strength in these matters was shown in particular, for instance, in the strong language of the Council conclusions on Russia and its actions in Ukraine, which was very much led by the Prime Minister. We will continue to work very closely on our security relationship. Both sides are absolutely determined to make sure that it is the deepest relationship that exists between the EU and another country.

NATO Brussels Summit 2018

Lord Browne of Ladyton Excerpts

Monday 16th July 2018 Lords Chamber

[Baroness Evans of Bowes Park]

As the Statement made clear, there was and is a sense of urgency and renewed commitment to move towards spending 2% of GDP on defence by 2024. It is only fair to say that our European allies and Canada, for instance, added $41 billion to their defence spending in 2017 alone. That is a commitment and we are confident that countries have a sense of urgency. We will continue to meet our commitment and will encourage our allies to do the same.

[Lord Browne of Ladyton (Lab)]

My Lords, I thank the Minister for repeating the Statement. The Brussels declaration makes it clear that NATO’s posture on Russia continues to be defence and deterrence, on the one hand, and dialogue on the other. When the secretary-general was recently in London, he drew heavily on his own experience as Prime Minister of Norway and said something with which many of us agreed: namely, that defence and deterrence are insufficient alone and that dialogue is necessary. Indeed, the more difficult the relationship, the more dialogue there needs to be. So why do our Government seem content with their policy of having no high-level meetings with Russia? This leaves our NATO allies to conduct bilateral relations with Russia that involve, for example, Hungary, Italy, Greece or Turkey, where the Kremlin can count on a sympathetic ear and not, it appears, a robust voice, while the President of the United States said only today, quite clearly, that in his view the deterioration of US-Russia relations is a result of,

“many years of US foolishness and stupidity”.

All this undermines the integrity of the alliance and moves away from unity. Why do we not step up to the plate and engage in robust dialogue?

[Baroness Evans of Bowes Park]

As the noble Lord knows, NATO’s practical co-operation with Russia remains suspended but channels such as the NATO-Russia Council are an important means to keep dialogue open. He is right that we have suspended all planned high-level bilateral contacts with Russia, but we continue to engage with it multilaterally when it is in our interests to do so. It is in our mutual interests to reduce the risk of misunderstanding, miscalculation and unintended escalation. The Prime Minister has always been clear that our approach to Russia is “Engage, but beware”.

Exiting the EU

Lord Browne of Ladyton Excerpts

Monday 9th July 2018 Lords Chamber

[Baroness Evans of Bowes Park]

I am afraid not. The UK’s current position implies two models of relationship: a standard free trade agreement for Great Britain with Northern Ireland remaining in the customs union and single market or membership of the EEA and a customs union. The Prime Minister has made clear that neither of these is acceptable or delivers on the referendum result. That is why we have put forward a comprehensive detailed plan, which we are now looking forward to discussing with our EU partners, to ensure that we can move these negotiations on at pace and deliver the best deal for the UK and the EU which all Members of this House, across this House, want to achieve.

[Lord Browne of Ladyton (Lab)]

My Lords, the Government’s first duty is to protect the public, so we should be reassured that this Statement and, indeed, the Chequers agreement, apparently agreed that we would be seeking a far-reaching security partnership with the EU. Indeed, the Prime Minister has been seeking that since the Munich security conference, with a united Cabinet behind her. Since then, we have discovered from Federica Mogherini that we can have such a relationship in security but as a third party not as a partner. Secondly, we have discovered that when the EU is contracting it has put in a break clause that means that it can get out of contracts of the nature we would be seeking if the contractor is not an EU member, which effectively freezes British companies out of contracting for security contracts, and then we have the Galileo row. So we have an example of a Prime Minister with a united Cabinet behind her negotiating. What progress have we made in negotiating a deep and meaningful security agreement with the EU since the Munich security conference?

[Baroness Evans of Bowes Park]

The noble Lord is absolutely right that we currently enjoy a high level of co-operation with EU member states. There is a challenge in finding a way through and our ability is currently being put at risk because, as he rightly says, the existing legal frameworks for third countries do not allow us to realise the ambitious future security partnership we are seeking. We are making these points with the EU. We are working very constructively with our EU partners. For instance, since the Salisbury incident we have led work with them to propose a package of measures to step up our communications against online disinformation, strengthen our capabilities against cybersecurity threats and further reduce the threat from hostile intelligence agencies. We have an excellent relationship in this area. The noble Lord is right that there are challenges, but we believe it is in both our interests to have a strong security partnership. We will continue to say that, and we believe that our EU partners agree. We will work through these current issues in order to make sure we achieve that end.

G7: Charlevoix, Quebec

Lord Browne of Ladyton Excerpts

Monday 11th June 2018 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, I thank the Leader of the House for the repetition of the Prime Minister’s Statement, which contained a report that the G7 agreed to strengthen the power of the OPCW to attribute chemical attacks. The OPCW does not have such a power—another UN body did, but it was closed when the Russians exercised their veto to stop its mandate being renewed. So how does the G7 without Russia intend to give this power to any body in the United Nations? Is there any explanation? What did the Prime Minister actually agree to?

[Baroness Evans of Bowes Park]

The communiqué agreed that we must maintain the global norms against the use of chemical weapons and there was agreement among leaders on the need to strengthen the ability—as the noble Lord pointed out, it is not there at the moment—of the Organisation for the Prohibition of Chemical Weapons to attribute responsibility for chemical weapons attacks. As he will be aware, there is a special conference of state parties later this month, which will be an important moment to demonstrate our determination to reinforce the Chemical Weapons Convention. We will, of course, be an active participant.

Salisbury Incident

Lord Browne of Ladyton Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness Evans of Bowes Park]

The noble Lord is absolutely right to highlight the seriousness of the situation facing us. We obviously comply fully with all our obligations under the Chemical Weapons Convention, and we will be working very closely with the Organisation for the Prohibition of Chemical Weapons to ensure that we try to prevent this happening again.

[Lord Browne of Ladyton (Lab)]

I thank the noble Baroness for repeating the Statement. I support entirely the Government’s robust response in these dreadful circumstances. On 29 September last year, President Putin declared that the Russian Federation had destroyed all its chemical stocks and chemical production facilities. It was congratulated by the then director-general of the OPCW on having done so. The logical conclusion that Russia has a production facility in contravention of international law exposes a serious flaw in the inspection and verification system of the international prohibition and nuclear weapons regime. This may not be an immediate priority, but soon will we not need to convene with our allies—at the very least a conference of experts—to look at how this international regime can be improved and, in particular, whether modern technology, of which there is much, can significantly improve our ability to inspect and verify countries that claim to be free of these dreadful weapons, when perhaps they are not?

[Baroness Evans of Bowes Park]

The noble Lord is absolutely right that the international community, including ourselves, welcomed the OPCW statement in September 2017 on the complete destruction of Russia’s declared chemical weapons stockpile. It is important to clarify that these were declared weapons of the Russian state, which is exactly why the Prime Minister asked for an explanation of how the Novichok nerve agent came to be used in Salisbury last week. The noble Lord is absolutely right, as I said in a previous answer, that we made a national statement to the OPCW executive council and we will be talking to it about further actions we can take in the future.

European Union (Withdrawal) Bill

Lord Browne of Ladyton Excerpts

2nd reading (Hansard): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Cormack. When I saw where I was placed in the order, I was confident that I would be following a speech that contained a robust defence of parliamentary democracy. My noble friend Lord Foulkes reminded me that he once described the noble Lord as being a man who was made for this place. Having watched the noble Lord here and in the other place and having been privileged to hear him speak, my observation is that he thinks that this place was made for him.

Only yesterday, we witnessed another indefensible and probably ultimately futile attempt by the Government to deny Parliament access to the information that it needs to hold them properly to account and simply to do its job. We all already know what the economic analyses of the consequences of the only feasible Brexit deals say and few of us are at all surprised. The Government will not be able to defend their position against the will of the majority in the other place for long. Eventually these documents will be published—although they already are.

For months now, every time that they have been faced with a reasonable request for explanation or clarification of the Government’s Brexit objectives, Ministers or government spokespeople have refused to give an answer, because apparently that would somehow undermine the Government’s negotiating position. I have been bemused and questioning of my own substantial negotiating experience and instinctive belief that there is no such negotiating advantage to be had. I feared that I might be alone in thinking this, because it never seemed to be challenged. That was until yesterday, when the noble Lord, Lord Higgins, in a few sentences exposed that the emperor has no clothes—the fallacy of that argument—to the amusement of many Members.

Throughout the negotiations, the EU 27 have clearly shown their collective hand—we are told that a decision was made in two minutes the other day—and because of that have maintained a position of dominance over the UK in the negotiations. As has become obvious, the truth is—there are many ways of explaining this—that a deeply divided party in government simply cannot answer these important questions because they have been unable to formulate a clear, common position. If you want specific evidence of that, Mrs Merkel revealed in a recent informal press conference, to the amusement of everyone, that every time she meets the Prime Minister, the Prime Minister asks her to formulate that position for us, saying, “Make me an offer”. No wonder we are in such a desperate state.

I am content to adopt the opening words of many noble Lords that this Bill is necessary. While it is complex, difficult to interpret and lacking in clarity, it is necessary that we have a Bill of this nature for exactly the reasons set out in the opening speech from the noble Baroness the Leader of the House. The Bill should never have come to this House in this state, but it is clear from the debate so far that the problems with it cannot be addressed other than by the most detailed and robust scrutiny and significant amendment and, to get to that point, the Bill requires a Second Reading.

I also agree that, when we see the terms of the final agreement, a concluding democratic process is required. My noble friend Lord Adonis argues that that should be a further referendum. I, too, should like to see a further referendum but, for reasons others have expanded on, I am able, and I thank the noble Lord for this, to adopt the position of the noble Lord, Lord Butler, who, in agreeing with my noble friends Lady Smith and Lord Mandelson, accepted that this Bill is not the appropriate vehicle to require a further referendum—by the way, I fear the interpretation of any failed vote that the noble Lord, Lord Cormack, described—while undertaking to support any amendments that propose a further referendum among the options if Parliament is given a meaningful vote after the conclusion of the negotiations.

As a relevant aside, what is “a meaningful vote”? The proposed withdrawal agreement and implementation Bill may provide a vote on the agreement but, given Article 50, can it be meaningful? If Parliament likes the deal and votes for it, the deal is implemented and the UK leaves. If Parliament does not like the deal and votes against it, Article 50 operates and on 29 March, two years after the notification of our intention to leave, unless there is an agreed extension, the treaties cease to apply and the UK leaves. Does a meaningful vote depend on the flexibility or the reversibility of Article 50? Perhaps the Minister will address that point in winding up. If that is the Government’s position, we should know.

I am sure that by now the Minister is clear about the issues that will be demanding his attention in the later stages of our deliberations. Paramount among them is the imperative that there must never, ever be a hard border between Northern Ireland and the Republic of Ireland. To achieve that, Northern Ireland and the Republic must be in the same customs union. The stakes could not be higher. I trust that the Minister will address this issue and make clear that that will never happen.

In the limited time available, I want to engage just one aspect of an issue that has already been discussed at some length: the devolution provisions. The political deficiencies of these provisions were accurately highlighted by the noble Lord, Lord Campbell, who said that they would be a recruiting sergeant for those in Scotland who seek to advance their independence agenda by blaming London for everything. At a time when the Scottish electorate are minded to make the nationalists accountable for their failures, this is an unnecessary and self-inflicted wound. The constitutional and legal deficiencies were exposed forensically in an important contribution by the noble and learned Lord, Lord Hope. In her opening speech, the Leader of the House promised that the Government would publish an analysis shortly to show the specific policy areas where EU law intersects with devolved competence and where the Government will require a UK-wide legislative framework. In addition, she reiterated the Government’s commitment to bring forward amendments to Clause 11.

In an earlier debate in this House on these issues, my noble friend Lord McConnell proposed a practical solution to this problem based on good faith negotiations. Negotiations are apparently ongoing, but the poker game continues. Yesterday, in a meeting with Michael Clancy, the Law Society of Scotland’s law reform director, he told me that he had analysed, over three months, the 111 powers in the list prepared by the Government to inform discussion between the Scottish and UK Governments about where it may be necessary to agree common frameworks. This list must exist. If it does, will the Minister undertake to let us see it before we debate these issues? It is the secret to a practical solution to this problem.