European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

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

[Lord Newby (LD)]

My Lords, I speak in support of Amendment 6, one of the earlier amendments in the group. It would simply require that a report be laid before Parliament,

“outlining the effect of the United Kingdom’s withdrawal from the single market and customs union on the United Kingdom’s economy”.

This is a starter for 10 for the Minister, which he should be able to agree to—because such an analysis already exists. The EU Exit Analysis—Cross Whitehall Briefing explicitly does what the amendment requires. This analysis is not desperately long—only about 30 pages —but it would undoubtedly help Parliament if it were made more widely available. It is, of course, possible for Members of the other place or of your Lordships’ House to see the document, if they go through a rather demeaning procedure and go to a curtained room— curtained, I was told by the civil servant who was invigilating me, because the document is so secret that the light of day, far less outside scrutiny, cannot be brought to bear on it.

I wrote to the Minister asking whether it would be possible for the Government to make the document public on two grounds. First, the document already is public, because Laura Kuenssberg has got it and has tweeted about it. Secondly, the argument for keeping it secret advanced by the Government—namely that if it were public it would undermine our negotiating position—is clearly false; it is a factual economic analysis and one that has been widely replicated by other think tanks and economic forecasters. I am very grateful to the Minister for the reply he sent me on 20 February. However, I was rather disappointed that he repeated the point that it was impossible for the Government to make this public because of their obligation to ensure security of negotiation-sensitive material. Most assuredly, this document is not that. He also said that it could not be published because it did not represent the Government’s view and that publishing it would likely be misleading to the general public.

Let me remind the House what the general public would discover if they had the opportunity to read this document. It sets out three scenarios, one of which is too appalling, I am sure, for the faint-hearted to contemplate—including, possibly, the maiden aunts of the noble Lord, Lord Lisvane. It says that if we exited on WTO terms, in 15 years’ time the economy of the north-east would have fallen by 16% below that than would otherwise be the case. You do not need to be of a sensitive nature to be somewhat frightened by such a prospect. It shows that if we had the sort of deal that Canada is negotiating, the economy of the country as a whole would fall by almost 5% and in the north-east by 11%. It states that if we had the Norwegian model, which is the closest model that anybody has contemplated, we would still see a fall in GDP of 1.6% and of 3.5% in the north-east.

There are those in another place who say that this analysis is far too pessimistic and who have castigated civil servants for deliberately including unrealistic assumptions in it. There is one very narrow respect in which I agree with the suggestion that some of the assumptions are questionable: they are far too optimistic. The analysis assumes that the UK will, over this period, have entered free trade arrangements with the US, China, India, the TPP, the Gulf Cooperation Council, ASEAN, Australia and New Zealand. There is not a single soul who knows anything about trade negotiations who believes that that is possible. In that respect this analysis is too optimistic.

If this document were published, it would at least allow people to see the likely range of consequences and to discuss them. They would also discover that in a Canada-type arrangement, which is nearest to what the Government’s centre of gravity seems to be:

“There are over 550 individual restrictions on the services trade”.


That is a quote from the document, which means fewer jobs across the board in the services trade, not here, there and in odd little places, but across the entire board. So is it surprising that the Government do not want to publish this document? Will it be surprising if the Minister, when he replies to this debate, says that they do not intend to do so? I suspect that it will not, but I hope that he will follow the advice of his colleague in another place, the former deputy Prime Minister, Damian Green, who only two days ago said:

“If analysis is being produced then publish it”.


I agree: he should.

[Lord Carlile of Berriew (CB)]

My Lords, to take up the theme of the noble Lord, Lord Newby, yesterday I went to 100 Parliament Street to read the EU exit analysis papers to which he referred. I will not break the rules by revealing, even though some of it has been leaked, what was written in them. It is a bit of an otherworldly, Kafkaesque environment. I was there with two retired Supreme Court judges and watched by very courteous young civil servants who ensured that we placed our mobile telephones on a desk in the corner of the room. But we were allowed to take our notebooks and pens with us so I have some notes that ensure that what I say is correct.

For those noble Lords who, like myself, have a maths education does that not go beyond ordinary-level additional maths, I recommend before you turn up that you look up the term “computable general equilibrium” or CGE modelling as it is known. It is a form of prediction that may be marginally less ignorant than any other form of prediction of the economy.

As a criminal lawyer who has been in practice for the best part of 50 years, I have seen quite a lot of suicide notes. I have seen real suicide notes and fake suicide notes. This was most certainly not a fake suicide note; it is most certainly a real suicide note. I read it with enormous concern. I am absolutely astonished, and indeed rather insulted, that Her Majesty’s Government do not regard the documents—30 pages of slides, effectively—as essentially disclosable in the public interest. Every member of the public should have the opportunity to read them to understand what I mean by a suicide note.

It is very pleasant over there, if a little dark in a tiled basement. There are beautiful Victorian brick tiles on the walls. It is an architectural gem, so it is a pleasure architecturally. Noble Lords should just go there and read that document because I do not think we are well informed unless we do.

Having said that, I turn briefly to another subject that, because of time, was deliberately not mentioned other than in passing by the noble Lord, Lord Wigley, in his eloquent opening of this debate. That is the internal border within Ireland. This is in the context of the customs union. I was Independent Reviewer of Terrorism Legislation for nine and a half years until February 2011 and I have been carefully following the events and politics in Northern Ireland as a fascinated and interested observer since then. The Good Friday agreement was a remarkable document and has had stunning effects. It has brought together, in a democratic forum, people who used to kill each other. It has meant that people who used to behave in that way have been prepared to put aside their very strongly felt traditions—in many respects, hereditary, visceral traditions. It has led to the economies of both Northern Ireland and Ireland improving considerably. Above all, it has led to the saving of life.

We are not talking just about the saving of life in Northern Ireland. There are some residual terrorists who are still trying to kill people and occasionally succeed, but the numbers have been reduced dramatically. It affects all of us. Let us not forget the plaque above the doorway of the other place recording the murder of a very distinguished Member of that House as he drove out of the House of Commons car park, which some noble Lords also use to their advantage. Let us not forget that soldiers—British soldiers including some from Northern Ireland and indeed from the Republic—died as a result of bombings in London because of that dispute.

There is absolutely no way in which intelligent people could sit down to discuss customs union, be they UK politicians or EU negotiators, without the determination that the one thing which cannot be negotiated away is the liberty of the citizens of Ireland to pass in and out of Northern Ireland and the citizens of Northern Ireland to do the same vice versa. If by the time we get to the Report stage, either by a special provision in the negotiations or by a new treaty, the future of the Northern Ireland border as close to its current state is not guaranteed, I will be voting for amendments of this kind and I would expect a responsible Parliament to do the same.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

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

That is why it seems to me that, as other noble Lords have said, the sensible way forward is that at best we should seek to withdraw our Article 106a notification. If we cannot do that, we should not in any circumstances leave Euratom until we have the voluntary offer agreement, recognition by the IAEA and our nuclear co-operation agreements with the key nations. If we have those we might be okay, but I see the decision that we have made as pretty reckless and pretty unnecessary. We still have time to repair it, and I hope we will.

[Lord Carlile of Berriew (CB)]

I agree entirely with what has been said already by the noble Lords, Lord Hunt, Lord Warner and Lord Teverson, so I shall try to reduce the length of my remarks. I am puzzled about why we are here, and why we are here today at all. As to why we are here, we do not have to leave Euratom when we leave the European Union. There is absolutely no evidence that Euratom has performed other than well. It may well be that the Court of Justice of the European Union is the shibboleth, because it is related to Euratom and has jurisdiction over it, and our Government feel that because there is that connection our membership can be no more. But there are no cases about Euratom in the European Court of Justice, so Euratom has operated incredibly well.

I am puzzled as to why we are here today because there is another Bill before Parliament, the Nuclear Safeguards Bill, and, as has already been said, the first Committee day on it is tomorrow. I had assumed that we would be able to debate these issues as part of that Bill. After a three or four-day negotiation with the Public Bill Office I had to accept that that was not the case—so here we are today discussing Euratom, but not in the Nuclear Safeguards Bill, which deals with the nuclear safeguards relating to the products dealt with by Euratom. Alice could not have invented this situation.

I drafted Amendment 221, which is part of this group. There is nothing particular about the new clause in that amendment; it tries to do the same as all the other amendments and new clauses now being debated. It is clear that medical nuclear and radionuclear devices and products are extremely important. They save lives. For example, in University College Hospital and the Royal Free Hospital in London—I cite them because I have witnessed the process in those hospitals—every day of the week consideration is given to using these products to save the lives of patients suffering from cancer. All the arrangements for bringing those products into the United Kingdom are carried out under the umbrella of Euratom. It was not absolutely necessary for that to be done under the umbrella of Euratom, but it is what has happened. The noble Lord, Lord Teverson, mentioned the European Observatory on the Supply of Medical Radioisotopes. That is the umbrella organisation that supervises all these arrangements.

The noble Lord, Lord Henley, has been extremely helpful. As I have said in other debates, I am the patron of the Society for Radiological Protection, which contains more than 2,000 professionals who are engaged in various activities, including the use and safety of radioisotopes in the health service. The noble Lord, Lord Henley, as Minister, has answered many questions and had the courtesy to see the two senior members of the Society for Radiological Protection last week. He very kindly produced for me a list of questions with the Government’s original commentary and their additional commentary. It contains some gems, such as:

“We agree that continued engagement with ICRP”—


that is the International Commission on Radiological Protection—

“and IAEA will be important following UK exit from the EU and EURATOM”.

The trouble is that nothing has been done to ensure that that importance is translated into a process. The Government have said in one of these answers that they,

“will seek to maintain close and effective cooperation with Euratom on nuclear safety. This should include future discussions concerning development of Article 34 policy and cooperative structures”.

Well, hope springs eternal. Nothing has been done about that. I was told that,

“the Government is committed to ensuring that the UK regulatory regime covering radiation safety remains effective post-exit and can be updated in the future, including to take account of international best practice”.

Amen to that. Indeed, the Government are, “considering available options”—this year, next year. This is the flavour of the responses.

Then we have:

“The UK Government is seeking a bold and ambitious Economic Partnership with the EU that is of greater scope and ambition than any such existing agreement”.


It is Euratom plus, plus. The document continues:

“We want to have the greatest possible tariff- and barrier-free trade with our European neighbours”.


Noble Lords could have fooled me after the earlier debates this evening. It continues:

“The Government’s ambition is to maintain as many of these benefits as possible through a close and effective association with Euratom in the future”.


I mark that tomorrow and tomorrow and tomorrow. So the document goes on.

“The Government is seeking a bold and ambitious Economic Partnership with the EU that is of greater scope and ambition than any such existing agreement. We want to have the greatest possible tariff- and barrier-free trade with our European neighbours”.


I mark that as to boldly go where none has been before. There is only a little more, but it is instructive. This is about standards:

“HMG are working with BSI to ensure that our future relationship with the European Standards Organisations continues to support a productive, open and competitive business environment in the UK and for the continued benefit of UK patients”.


I mark that as “where angels fear to tread”. Finally:

“There will be regulatory systems in place for both medicines and medical devices after the UK has left the EU”.


Then we come to the important part:

“The future arrangements are a matter for the negotiations and it would not be appropriate to prejudge the outcome”.


That sounds a little bit like those kids’ films I used to see on Saturday mornings which ended with the words, “That’s all, folks”, but no real conclusion.

What has happened is that, despite the great attempts at co-operation by Ministers, we have absolutely no system in place, in draft or even in vision for the efficient importation and export of radiopharmaceutical products. We should not allow this legislation to go forward unless we know what plans the Government have, and unless we know that those plans have been discussed, negotiated and are the subject of agreement. Otherwise, there is only one option: let us stay in Euratom, which works very well.

[Lord Adonis]

Could the noble Lord address the issue raised by the noble Lord, Lord Teverson, about the notice of withdrawal under Article 106a? As a distinguished lawyer, is he of the opinion that Her Majesty’s Government could withdraw that notice unilaterally, which could be an issue of some moment if the Minister who is open to persuasive arguments were to form the view that the right course for the Government now is simply to withdraw the notice of withdrawal and seek to stay in Euratom?

[Lord Carlile of Berriew]

If I could be allowed an ad majorem argument, I would recommend to noble Lords an article written on the Monckton Chambers website by the distinguished competition lawyer, George Peretz QC, which—as I understand it because I am not an expert on European law—provides the answer yes to the question put by the noble Lord, Lord Adonis.

[Lord Whitty (Lab)]

My Lords, I have two amendments which are grouped with Amendment 8. I am afraid that they probably should not have been included, but like the noble Lord, Lord Teverson, and my noble friend Lord Liddle, I was in Brussels today and did not have a chance to argue the groupings, so I am afraid that noble Lords are going to have to hear me speak on this issue tonight. My Amendment 114 makes a rather important cross-reference to Euratom.

The amendment seeks essentially to add a clause to the Bill after Clause 7, with an accompanying schedule. Before we understand what is happening to our whole regulatory system and therefore pass this Bill, and certainly before we leave the European Union, we need to know from the Government what their view is on future relationships with the EU executive agencies. The schedule lists those agencies which include two Euratom agencies. It lists the supply agency to which the noble Lord, Lord Teverson, referred. Its observatory plays a key role in dealing with supply chains of extraordinarily sensitive and potentially dangerous material. It lists also the Fusion for Energy agency which deals with some of the aspects to which the noble Lord, Lord Broers, referred in terms of the development of fusion as a new source of energy and the high-level, European-wide research programme at Culham and elsewhere. They are very important agencies. At this point we do not know what future UK participation, arrangements, observer status or links with those agencies are going to be.

In addition to those two Euratom agencies, there are 34 executive agencies of the European Union. I have noticed the time and I will therefore not go through the role and remit of them all, as well as the importance of knowing where we are, but they include a number of agencies of great importance to the lives of our citizens, to our industry and to our environment. There are agencies which deal with safety at work, food safety, environmental safety generally, and of course there is the EU Medicines Agency, which regrettably is moving away from Britain, dealing with medical safety. There is a whole range dealing with police and judicial procedures.

These agencies are not law-making bodies, but they are operationally very important to the sectors to which they apply. The UK has engaged very effectively with most of those agencies, to the benefit of our citizens, industries, sciences and judicial system. I have asked a number of Written Questions as to what the future arrangements are, with the standard reply being: “This will all be sorted out in the negotiations”. However, the negotiations are going on at the same time as we are dealing with the Bill. We need to know, in relation to the Bill, how those agencies will interact with the regulations newly transposed into UK law and the way in which we operate in those industries and systems.

My visit to Brussels in the last couple of days has underlined the urgency of the situation of knowing where we are with such agencies. For the first time, I carefully read the EU’s proposition on how we deal with transition periods. That document says that the UK will not only no longer participate in the institutions of the European Union but also,

“no longer participate in … the decision-making or the governance of the Union bodies, offices and agencies”.

In other words, in approximately one year and 34 days, we will no longer participate in any of these vital agencies. It is possible, if the Government put their mind to it, to establish in that period new relationships. In some of these agencies, non-EU bodies are either observers or participants. At the moment, we have not a clue how the Government are approaching the future in all of these important areas. It is an urgent decision that we cannot delay until the end of the transition period, because unless the Government persuade the EU otherwise in the next few weeks and months, from the date of exit we will no longer participate. This will change the way in which we operate in a range of safety, environmental, scientific, judicial and police areas—including security and defence.

That issue arises for a whole number of areas well beyond Euratom. On Euratom, I agree very much with what virtually everybody else has said: it is unnecessary to come out of Euratom. It is still possible to distinguish our approach to Euratom and effectively rescind our resignation from it without changing our position on the EU. Indeed, all the arguments—from industry, science and environmentalists—indicate that we should do that. At the same time, I urge your Lordships, and the Government in particular, that before we get very far in the process on the Bill, we should get a clear indication, not only on the Euratom agencies, but on the rest of the agencies set out in Amendment 263 proposing a new schedule, so that we will know, well in advance of leaving the European Union and its agencies and well in advance of the beginning of the transition period, quite how we will operate with them in future. I ask the Minister to take seriously the list I have given him and, perhaps in writing or on Report, to indicate to us how the Government intend to deal with this very important tissue.

--- Later in debate ---

Before I conclude, I shall address the amendments from the noble Lord, Lord Whitty.

[Lord Carlile of Berriew]

I am grateful to the Minister for the explanation that he has given on the issue of medical isotopes. Can he give us one further piece of information? How many meetings have actually taken place so far in an attempt to negotiate with the EU the continuity of the system of importing and exporting medical isotopes from the UK and from the EU?

[Lord Callanan]

I am afraid I do not have those figures to hand. I cannot tell him how many meetings there have been.

[Lord Carlile of Berriew]

Have there been any?

[Lord Callanan]

I can say that there has been extensive dialogue and discussion with both our EU partners and international partners at official and ministerial level. I can write to him with the exact number, which I can discover.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

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

I suggest to the Minister that, because of the ambiguities inherent in the phrase “of a kind”, it would be very helpful if the Government could bring forward on Report an amendment that clarifies exactly what they mean so that there is no doubt. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, when I was a young barrister doing cases in strange places such as Caernarfon Crown Court, nobody at that time thought of bringing charges under the Justices of the Peace Act 1361, but some time in the 1970s somebody had that bright idea. The Justices of the Peace Act 1361 applies to certain public order issues. Suddenly, charges of affray started appearing before those courts, and nobody questioned the efficacy or applicability of the Justices of the Peace Act 1361 in that context. Noble Lords may well be thinking: it is bedtime and that is a good story, but what on earth has it got to do with this amendment? I venture that it has something to do with it.

I am not a member of the Constitution Committee but I admire everything it has done and I support what my noble friend Lord Pannick has just said. This is about the clarity of the law. Normally, if we in this Parliament enact a law and nobody questions its efficacy for years—such as, for example, the Justices of the Peace Act 1361—we tend to pat ourselves on the back and say, “For once we’ve got something right. It’s not troubling their Lordships and Ladyships in the Court of Appeal or the Supreme Court, so we can be well satisfied with our legislative process”. What seems to be being said here, at least to the ordinary reader, I suspect, is that if a particular provision, though it exists, has not been tested and questioned before a court, in some circumstances it should not apply. But if it has given rise to difficulty and has had to be tested in court, that is a kind of imprimatur of quality. I just do not understand it. I hope that your Lordships, at least at 9.20 pm, tend not to understand it either.

Whichever version of this particular law we have—which has, I say to the Minister, the commendable virtue of retaining existing rights and allowing us to presume that we can act on our retained rights—please may we have clarity on what is intended and, if necessary, an explanation of why the Government wish to disapply certain rights that exist?

[Lord Krebs (CB)]

My Lords, I will speak to Amendment 28, in my name and that of the noble Baroness, Lady Jones of Whitchurch, and my noble friend Lady Brown of Cambridge. This amendment, which seeks to replace Clause 4 with a new clause, includes the same intent as that of Amendment 26 but goes further. It aims to preserve, more comprehensively than the existing Clause 4, the rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972. Where such rights, powers, liabilities, obligations and so on are incorrectly or incompletely transferred, it also imposes a duty to make regulations to remedy the deficiency.

The Government’s ambition for the withdrawal Bill is for the same rules and laws to apply after the UK leaves the EU as they did before. This ambition has been repeatedly stated, including in the Government’s great repeal Bill White Paper. As the noble Lord, Lord Pannick, reminded us in Monday’s debate,

“the Prime Minister said that this Bill is not an occasion for changing the law, it is an occasion for ensuring that on exit day we have a workable, certain, continuing system of law”.—[Official Report, 26/2/18; col. 550.]

However, the Bill as drafted fails to retain all EU law and therefore does not meet this objective which has been set by the Prime Minister.

I am approaching this from the point of view of environmental protection. The problem is not exclusive to environmental law, but because 80% of environmental law stems from the EU it is particularly important in this area. I would expect the Government to welcome this amendment as it will help to support their ambitions for protecting the natural environment. As the Secretary of State for Environment, Food and Rural Affairs reaffirmed recently:

“It is this Government’s ambition to leave our environment in a better state than we found it”.


It is widely accepted that, over recent decades, the state of our environment has improved in many respects, due primarily to the introduction of EU laws. Amendment 28 will therefore support the Government’s ambition to go further in protecting and enhancing our environment by addressing four problems with the current Clause 4.

The first problem is the one identified by the noble Lord, Lord Pannick, in his Amendment 26. As the Explanatory Notes explicitly state,

“any directly effective provisions of directives that have not been recognised”—

that is, by a court—

“prior to exit day … will not be converted”.

I do not propose to say more about this because the noble Lord has explained, in better terms than I could, the ambiguity created by this clause.

Secondly, the proposed new clause in Amendment 28 imposes a duty on the Government to make regulations that will remedy any cases in which there have in the past been an incorrect or incomplete transfer of EU law. If the Minister considers this to be unnecessary, perhaps we could understand why. The powers to do so are contained in Clause 7(2)(f) but, surely, she would agree that there is a significant difference between a power to do something and a duty to use that power.

The third point that the amendment aims to rectify is that a number of provisions of directives are relied on directly, rather than via transposition into UK legislation. The status of these provisions is unclear as the Bill stands. An example is the Government’s current environmental reporting obligations. Can the Minister confirm that these will be put on a domestic footing as a result of the Bill?

The fourth point, on which I do not intend to elaborate because it is dealt with in Amendment 58, is that the current Clause 4 does not include the preambles to EU directives, which are important in interpreting existing EU legislation. I shall not say more about that today.

Without the amendment to Clause 4, which I am proposing with others, the Bill puts at risk EU law provisions such as the requirements to review and report on the adequacy and implementation of laws such as those in the marine strategy framework directive, the air quality directive and the habitats directive. It does not place obligations on the Government to report and send information to the European Commission —not surprisingly—which is then able to aggregate this information and use it in its consideration of the appropriateness of laws and their implementation.

Without Amendment 28, the Bill omits the aim and purpose of directives, such as the habitats directive specifying that its aim is to contribute towards biodiversity conservation, while some obligations incumbent on member states that have not been transposed into UK law will be lost—for example, the water framework directive’s requirement that water-pricing policies provide adequate incentives for users to use water efficiently. Without Amendment 28, the requirement for regional co-operation in transboundary environmental matters—for example, in article 6 of the marine strategy framework directive—would be lost.

As I have already mentioned, these problems will not only be felt in the field of environmental law. There are other examples of where directives have been incompletely or incorrectly transposed, and which would therefore be lost because of the current drafting of the Bill. These include article 15 of the e-commerce directive and article 4 of the employment equality directive, to name but two.

Finally, I would like to give one practical example of why Amendment 28 is needed. Article 6 of the energy efficiency directive requires member states to ensure that central governments,

“purchase only products, services and buildings with high energy-efficiency performance, insofar as that is consistent with cost-effectiveness, economical feasibility, wider sustainability, technical suitability, as well as sufficient competition”.

This obligation is currently implemented through a procurement policy note. The legal basis for such guidance is article 6 of the directive. No statutory obligation exists in UK domestic law. This means that the article 6 obligation on the Government to purchase highly energy-efficient products, services and buildings will disappear from our law after exit day. The procurement policy note has no legislative status and could be revoked by a Government at any time, without any form of parliamentary scrutiny.

I hope that the Minister will address my points in her response and, if she is not prepared to accept Amendment 28, will explain what additional steps the Government intend to take to ensure that the environment is protected by law and that this Bill ensures that we will have a workable, certain and continuing system of law on exit day.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Farmer]

I thank the noble Baroness for her intervention. Perhaps I can speak to her afterwards concerning countries outside the EU. It is worth mentioning that Professor Beaumont who I mentioned earlier—a leading expert on both the EU and The Hague—said in his opinion that The Hague alternatives are perfectly adequate and satisfactory on our leaving the EU. Apparently, the House of Lords committee does not seem to have heard this evidence.

I am sure noble Lords will be pleased to hear that I am coming to the end of my remarks. This amendment should be rejected because it concentrates on the UK remaining Eurocentric, not global, which is an important point if we are leaving the EU. Academics and lawyers who would have spoken favourably about the Hague laws were not consulted by the House of Lords Justice Sub-Committee, yet practitioners and others have described to me the incredible benefits to children and families from the UK being part of these worldwide international laws.

[Lord Carlile of Berriew (CB)]

My Lords, the noble Lord, Lord Farmer, is rightly respected for his expertise on a number of subjects—this was not one of them. Indeed, it was palpable that the atmosphere in the Chamber was curdling as he spoke. I remind the noble Lord and, indeed, the Committee, and particularly the Minister, who I suspect did not enjoy the speech we have just heard, about the danger of double standards on this subject. I remind the Committee in particular of Section 1 of the Children Act 1989, and of the standard that that Act imposes on courts. By “courts” I refer to every court dealing with children’s issues, from the Amlwch magistrates’ court, if the noble Lord, Lord Wigley, will forgive that reference or enjoy the name check, to the Supreme Court and, indeed, to the President of the Family Division, a role which my noble and learned friend Lady Butler-Sloss filled with such great distinction. It is worth reminding your Lordships that the “paramount consideration”—those are the statutory words—when a court considers the upbringing of a child or anything to do with the child is that child’s welfare. Section 1 of the Children Act 1989 does not merely deal with physical aspects of the child’s life but includes, for example, in Section 1(3)(a),

“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.

Those are the standards that this Parliament places on our courts.

There is a danger that, if the Government do not sort out the problems so ably articulated by those who have spoken to these various amendments, we will have a situation of double standards. The courts will be obliged to apply those standards but our Government will abandon them, possibly merely to avoid a few cases coming before the Court of Justice of the European Union. That is completely unconscionable. I am not saying that the only solution is to fall under the jurisdiction of the Court of Justice of the European Union; there may be alternatives, such as a treaty with the European Union that provides for similar processes, albeit through our own courts, and reciprocal arrangements with other courts. The Court of Justice of the European Union is not a shibboleth—one way or the other. It is just the current way of solving a series of problems, which nobody is able to improve on at the moment.

It would be completely unacceptable to hear from the Minister who responds to this debate words such as, “We hope to negotiate”; “We are considering negotiating”; or “We expect that we will achieve”. That will not do, because it does not put the welfare of children first. So when the Minister comes to reply, I hope that we will hear, specifically, how many meetings have taken place in an attempt to start to negotiate a resolution of issues affecting the welfare of children who may be abducted in the most appalling circumstances; when the next series of meetings is to take place on that subject; at what level it is being done; and to what extent the leaders of the family Bar and the family solicitors are being involved in the process of consultation and negotiation. Otherwise, we will have no option but to adopt something like these amendments on Report.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I very much welcome the amendment in the name of my noble friend Lady Sherlock, and the important questions that she posed to the Minister at the start of the debate. The debate has shown how critically important it will be to get the answers to these questions right, not just in the coming months but in the coming years and perhaps decades. The noble and learned Baroness, Lady Butler-Sloss, was forensic in her description, which came from very real experience, of the benefits of the current system and of what might be lost if we make the wrong decisions in passing the Bill.

I will not go back over all the points that have already been made; in the current circumstances I will be deliberately brief. I will raise two points in particular. First, within the United Kingdom we have different jurisdictions concerning family law and some of the other legal rights that have been mentioned in the debate so far. I would welcome some reassurance from the Minister in his response that appropriate discussions are taking place with the Scottish Government and others to ensure that whatever we enact here in the UK Parliament is appropriate for the whole of the United Kingdom, and not just for the legal system in England or England and Wales.

Secondly, on a point of principle, there is a reason why this subject matters so much. We can have ideological debates about our future economic partnership with the European Union, and we can have ideological or political debates about the financial position before and after exiting the European Union—but children and family law are at the very core of the things that matter to us most: the relationships between parents and children; the relationships between children and other children who might be estranged from their brothers and sisters; the relationships between adopted children and their natural parents, whom they may wish to contract later in life; and the relationship between estranged couples.

That is why this debate is different from others, and why in this instance I urge the Government and everybody on all sides who supports or sympathises with Brexit to look for solutions to these issues that deal with the personal, not the political. I urge them to ensure that, whatever arrangements are finally agreed, those personal rights will give families an opportunity to continue contact and to seek appropriate rights and redress, and to be able to do so in the easiest and least expensive way possible.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I must advise the Committee that if this amendment were agreed to, I would be unable to call Amendments 44 or 45 for reasons of pre-emption.

[Lord Carlile of Berriew (CB)]

My Lords, for those of us who have real enjoyment in the law, a nice bit of law at three minutes past midnight is rather like a comforting, calm, creamy cup of cocoa, but I recognise that not everybody is of the same view. With that in mind, I propose to elide in the remarks I am going to make comments on Amendment 45, which appears in my name and that of the noble Lord, Lord Lucas, and on Amendments 48 and 50, which appear with the same names. That should save time in a few minutes because I understand that we intend to complete that group as well.

These amendments are designed to retain the so-called Francovich principle. I congratulate the noble Lord who has just spoken on summarising it very well. I will add a little bit of flesh on it because I wish to try to tease out of the Minister a welcome response to those of us who seek to preserve at least part of the Francovich principle, although I would happily pass to him the burden of perfected drafting.

In the Gina Miller litigation, in which the noble and learned Lord and my noble friend Lord Pannick played starring parts, the Government in their submissions place considerable weight on their intention to enact what was then called a “great repeal Bill”. As the Supreme Court understood it, that Bill would—and this is a quotation from the majority judgment at paragraph 34,

“repeal the 1972 Act and, wherever practical … convert existing EU law into domestic law at least for a transitional period”.

Surprisingly, in relation to the Francovich principle, there has been no conversion and no transition. I ask the Minister to explain whether that really is the position that the Government wish to maintain.

The Francovich principle is a principle of existing EU law which requires damages to be available where three conditions are met: first, that the rule infringed was intended to confer rights on individuals—I am sure that we would all applaud that; secondly, that the breach was sufficiently serious to give rise to a legal action, which I am sure we would also applaud; and, thirdly, that there was a direct causal link between the breach of the obligation resting on the defendant and the damage sustained by the injured party, and I am sure that we would all applaud that, too. Perhaps the Minister would explain why he wants to get rid of that principle.

To provide a little more explanation for the fascinated non-lawyers here, who may just about be in a majority—

[Lord Taylor of Holbeach (Con)]

Hear, hear!

[Lord Carlile of Berriew]

I always listen with great respect to the Government Chief Whip, especially when he sympathetically allows us to debate these issues after midnight.

In Francovich, workers who suffered damage when their employer became insolvent were entitled to compensation under an EU directive which required member states to secure their protection. Since Italy had failed to implement the directive, the individual workers brought a claim before their national courts for compensation from the state for the damage they had suffered due to this failure, and I think that we would all applaud that, too.

State liability is enforced not through the European courts but through national courts, thus the ECJ stipulated that national procedures should determine how state liability is enforced. The procedures for claiming damages from the state before national courts must comply with the principles of equivalence—that is, with the procedures available for comparable claims for damages—and effectiveness, to secure that EU law as well as national law is respected. As long as it respects these two principles, the member state can prescribe its own procedures for claims as regards, for example, proof and time limits —so it is hardly imposing wicked European ideas on the national courts, since they are left to enforce the principles concerned.

The Francovich principle has led to some significant legal actions; perhaps the best known in the UK is the Factortame litigation, which contained five cases concerning fishing rights.

What is the problem with the Bill? It is confusing. I quote from the summarised views of commentators more expert than me on this subject. It is said that Clause 6(1) removes the right to rely on EU law and obtain a reference to the ECJ after the date of exit. Paragraphs 3 and 4 of Schedule 1 plainly remove the ability to rely on EU law or utilise the Francovich principle after the date of exit. Or do they? I ask that because paragraph 27(3) of Schedule 8, which all noble Lords will have been reading carefully in preparation for this short debate, makes it clear that cases begun prior to the exit date are not subject to the restriction that I have described and therefore can continue to rely on Francovich.

As was pointed out by Dame Cheryl Gillan in another place on 14 November last, the Bill is contradictory, in that it both allows continued reliance on Francovich in cases commenced before the date of exit but also removes that right. That appears to mean that a litigant in a case started before the date of exit, and who has a legitimate expectation that the law will not change retrospectively and that he or she will be able to rely on Francovich, will lose that expectation. If I am wrong in that, I am not the only one and I would like a correction, please. All litigants have a legitimate expectation to have their cases heard under the rules applicable not at an arbitrary time, such as the date of exit, but at the time of the breach of the law concerned. This includes EU law at that time, if it was applicable, and on the face of it, the right of a reference to the ECJ if they are dissatisfied. The purpose of the two groups of amendments is to achieve something much simpler, clearer and more just than the conclusion if the complaints I have described are correct.

I respectfully suggest that if a relevant cause of action accrues before the date of exit, the claimant should be able to pursue that cause of action. That would be their normal litigation right, and exit should not retrospectively remove that normal litigation right. As the Bill stands, because of ambiguity there is a risk that some or all Francovich claims, unless they have already been completed, will be extinguished. Surely, that would be an incorrect and unintended consequence. Plainly—and I will deal with this in a moment—there are some concerns about the potential role of the ECJ.

[Lord Faulks]

One of the points I was going to make concerned the continued role of the ECJ, but while I am on my feet, I entirely understand the noble Lord’s points about transitional provisions, but will he clarify to the House whether his support would go as far as the noble Lord, Lord Davies, in having a continuing Francovich?

[Lord Carlile of Berriew]

No, I would not go so far as the latter part of the speech of the noble Lord, Lord Davies. I recognise that if we leave the European Union, as we are doing, we have to have the transitional arrangements that were promised and that were referred to by the learned judges in the Supreme Court, on the basis of submissions that may well have been made by the noble Lord himself.

What I suggest to deal with the ECJ problem is one of two alternatives. One is to allow the ECJ jurisdiction to continue for the very small number of cases likely to arise. I recognise, of course, that that will attract political problems that might better be overcome by a more pragmatic solution. The pragmatic solution is to recognise and clarify that the United Kingdom courts, in dealing with such cases, should apply normal, comparative law principles; the sort of thing that we lawyers are accustomed to when we cite, for example, Australian or Canadian cases before the senior courts. This would mean that the courts of the United Kingdom, in dealing with such cases, should have due regard to ECJ decisions on similar and analogous matters. This would fall, as I say, within the ordinary principles of comparative law, whereby the United Kingdom courts give due weight to useful and relevant decisions in other jurisdictions. Thus we would have at least analogous law applied to the residual Francovich cases. We would have a right to make a claim on the basis of the date when the claim accrued, even if it is not yet quantified and not yet pursued, and the unintended consequences of retrospectivity would be avoided. In my view this would accord with sound legal principle.

I urge the Minister, even at this late hour, to say that he will return to the House with suitable and welcome government amendments for the clarification and preservation of what are proper bases for action.

--- Later in debate ---

[Lord Keen of Elie]

Perhaps I can continue just for a moment. I would begin by looking at the Bill against that background. Paragraph 4 of Schedule 1 is perfectly clear in saying the right to Francovich damages is removed, because of course it is related to a breach of European Union law, and it would not be appropriate to continue—in accordance with Amendment 43—after we have left the European Union. The Bill is quite clear in saying that there is,

“no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”.

To that extent, it does deal with the issue raised in the context of Section 16 of the Interpretation Act 1978.

[Lord Carlile of Berriew]

I take it from what the noble and learned Lord is saying that he accepts that there are existing rights to recover damages available in the British courts which the Government wish to remove. That is a breach of promise, is it not?

[Lord Keen of Elie]

I wonder whether the noble Lord could exercise a small degree of patience while I just complete what I have to say on this topic. But we can take as long as it takes. As I was saying, in terms of paragraph 4 of Schedule 1, the right in domestic law to damages in accordance with the rule in Francovich is removed as at exit date. There is of course a proviso in paragraph 27 of Schedule 8 in respect of claims for Francovich damages which have already been raised prior to exit date—the point that the noble and learned Lord, Lord Goldsmith, made. The potential lacuna is this: there may be accrued rights as at exit date where no claim has been made. We recognise that and it was noted in the other place. We are open to addressing that issue in order to ensure that those accrued rights are not removed by the application of paragraph 4 of Schedule 1. That is something that we are prepared to look at, as I have indicated, because we are aware of the criticism that has been made about the potential removal of rights that have already accrued as at the exit date.

--- Later in debate ---

Moved by

[Lord Carlile of Berriew]

48: Clause 6, page 3, line 32, after “Court” insert “except in relation to anything that happened before that day”

[Lord Carlile of Berriew]

I am grateful to the noble and learned Lord for what he said earlier. It was well worth waiting up for and rather more stimulating than the cup of cocoa that I referred to earlier. Having said that, I can see no point in prolonging the debate on this amendment. If it is appropriate, therefore, I seek leave to withdraw it.

[The Deputy Chairman of Committees]

The noble Lord must move the amendment before he can withdraw it.

[Lord Carlile of Berriew]

I beg to move. Can I withdraw it now?

[The Deputy Chairman of Committees]

It is the property of the Committee until the noble Lord obtains its permission to do so.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

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

[Lord Carlile of Berriew (CB)]

Can the noble Baroness clarify her constant references to Clause 7? As I understand the clause, it is intended to allow Ministers for a period of two years to introduce regulations to remedy deficiencies that come to light during that two-year period. But if we know patently, as has been illustrated in this debate, that there is a severe deficiency that we know about before Brexit, Clause 7 is not designed for that at all and the noble Baroness should not be relying on it. She should instead accept an amendment of this general kind.

[Baroness Goldie]

Clause 7 is designed to address identified deficiencies post Brexit where our existing clinical trials regime may include references to EU bodies and institutions, but those would no longer be correct or competent and an amendment would be necessary. In response to the point made by the noble Lord, Lord Carlile, it goes back to what may be, and I hope will be, a very positive outcome to the negotiations. In that case, many of these fears will be assuaged, but I cannot second guess the negotiations and I cannot give premature guarantees that might be completely inappropriate.

--- Later in debate ---

[Viscount Hailsham]

I am very grateful to the noble Lord and I am sorry if I misunderstood him, but I understood that he sought to suggest that a charge that creates a surplus in effect amounts to a tax. However, I am bound to say that if he is right and these things are essentially the same, that creates a very major problem. Paragraph 2 of Schedule 7 says that an instrument that allows the imposition of a fee by a public authority can be created only by affirmative resolution. But then, I ask rhetorically, what about a charge? If the fee is governed by the affirmative resolution procedure and a charge is not, we are in an extremely difficult situation. What is a charge? Incidentally, I am not sure this really helps the noble Lord, Lord Turnbull, but if one goes to paragraph 6 of Schedule 4, one finds the phrase “fees or other charges”, which rather suggests to me that there is a distinction between a fee and a charge.

I have a number of specific questions for my noble friend the Minister. First, what is the difference between a fee and a charge? Secondly, related to that, does the provision of paragraph 2 of Schedule 7, which insists that a fee can be imposed only after the creation of a power by an affirmative resolution, also apply to a charge? If it does not, we have a wonderful situation whereby the fee can be imposed only if the power is created by a statutory instrument of the affirmative kind but that is not true of the charge.

[Lord Carlile of Berriew]

May I throw another word into this taxation Scrabble? What about the word “contribution”? Most of us in this House have paid national insurance contributions for most of our lives. Is that a tax, a charge, a fee or a contribution?

[Viscount Hailsham]

The point is a very sound one, although of course most of us no longer pay national insurance contributions. There is of course another word that one could use, which is “imposition”, as in a financial imposition. The real truth is that we are entitled to a proper definition.

Having focused on some specific narrow points, I would just like to look at one or two general ones. The first is the point that I made on Wednesday, and I shall keep a firm grip on it: any power given to Ministers and officials will be abused. That is an absolute cardinal rule of politics. Secondly, the degree of ministerial and parliamentary control on any statutory instrument is minimal. I speak as one who has considerable authority for saying that: for 10 years I was a Minister and I do not know how many scores of statutory instruments I signed off, but it must have been a very large number.

--- Later in debate ---

[Lord McNally (LD)]

My Lords, my name has been added to a number of the amendments in this group and I appreciate the Minister’s intervention, which should make this debate fairly short. I want to take up an earlier point made by the noble Viscount, Lord Ridley: he said that he thought some of the speeches were too long and bordering on filibustering. That set a little alarm bell ringing in my mind. I have sat in on some of the debates and I have read others, and I think that this Bill is being handled by this House in the appropriate way that it deserves. Some of the speeches, from all the Benches, have been among the best I have heard in parliamentary debate.

The Minister, in referring to his Privy Council Bench, said that they were poachers turned gamekeepers. I say, en passant, that I look on them as sinners turned penitents, but that is a matter of taste really.

As I say, there have been some magnificent debates, but I worry where we are going on this. Sometimes I wonder whether the Ministers are adopting the tactics of the great boxing champion Muhammad Ali. His “rope a dope” strategy was to take all the punishment in the early stages and then have his own way in the later stages of the fight.

I hear what many noble Lords have said—the noble Lord, Lord Cormack, among them—that of course the House of Lords can go only so far with its opposition in the face of the Commons. The contribution from the father of the noble Viscount, Lord Hailsham, who warned of an elected dictatorship, comes into play here. So too does something I have mentioned on a number of occasions over the past 20 years that I have sat in this House: this House has the right to say no. We must ask ourselves why successive Governments, some with very large majorities in the House of Commons and some who have reformed this House from time to time, have left it with the right to say no. The reason is that unless we retain the right to say no, we would become a debating Chamber and the Government could simply use their Commons majority to force things through willy-nilly, regardless of whether or not we oppose them. I realise that, in some areas, we bow to the wishes of the elected House, even when we do not want certain things to go through.

As happened in the past two sittings of this Committee, we have discussed in great detail two very important constitutional issues: the right to impose taxation and, now, with this group of amendments, the right to create criminal offences. The proposals go to the very heart of our constitutional settlement and, in my opinion, to the very heart of the responsibilities of this House. Therefore, although I appreciate that a considerable promise was made at the opening of this debate, I say this to Ministers and to colleagues who have made outstanding speeches: regarding our red lines about the right to impose taxation and to create criminal offences, somewhere down the line, if what the Government come up with is not satisfactory, in our responsibility to defend the constitution this House must reserve the right to say no.

[Lord Carlile of Berriew]

My Lords, I want to add one short point to what has been said about sentences of imprisonment. It is likely that if the Government think it necessary to introduce new criminal offences, they are not going to be offences of assault or anything of that kind, but offences that relate to the conduct of business between the United Kingdom and the European Union. What we are talking about here are possibly mainly regulatory offences, for which sentences of imprisonment may not be necessary at all. However, such offences may affect severely the conduct of companies and the relationships between them, the conduct of local authorities and so on. Therefore, I ask that included in the scrutiny that the Minister has very helpfully promised is a slightly more sophisticated test that bears in mind the effect of potential new offences on the business community and the economy.

[Lord Cormack]

My Lords, I support what the noble Lord, Lord Carlile, has just said and ever so slightly disagree with my noble friend Lord Hailsham. Whatever the nature of the offence, it is wrong that it should be created in this way. I agree with the noble Lord, Lord Carlile, that custodial sentences are highly unlikely, but that is not the point. To create any sort of offence in this way is fundamentally wrong and we should not have anything to do with it.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, the amendment was moved with eloquent brilliance by the noble Lord, Lord Patten. I want to add a few words based on my nine and a half years’ experience as the Independent Reviewer of Terrorism Legislation and the close interest that I have taken in Northern Ireland, and specifically the border, since then. Before I do, however, and with the greatest respect to the noble Lord, Lord Alderdice, whom I admire greatly—I mean that genuinely—may I point out to him that he may have misunderstood the words of the part of the amendment that he just referred to? The amendment does not allow an intergovernmental requirement for security checks. There is absolutely no question that security checks will be required from time to time. I have been in security checks myself from time to time in Northern Ireland and they have been put in place and removed ad hoc extremely quickly. I have seen them happen at extraordinary speed within minutes. So I ask the noble Lord if he would not mind having another look at that part of the amendment before encouraging other noble Lords, if there is a vote, to vote against it or by voting against it himself.

I have spent time in Northern Ireland, including time with Sinn Féin Members of the legislative Assembly. I regret very much that Sinn Féin MPs do not take their seats in the other place. They could make a very useful contribution on the subject of Northern Ireland and Ireland in general. I disagreed with an awful lot of what they did before, but my observation from the time that I have spent with them, including, on one occasion, making the journey from Belfast down to South Armagh and observing how the person in question operated as an elected representative in that part of the world, is that they have committed themselves to the constitutional arrangements which appertain in Northern Ireland. That is because of one event: the Good Friday agreement and all that has flowed from it. A large number of institutions have been built as a result of that agreement. If we look at the membership of the legislative Assembly when it sits, particularly at the identity, experience and backgrounds of today’s Sinn Féin Members, most stand as elected representatives whose integrity could be compared to almost any other legislative body in Europe. We have come an incredible distance over those years.

On the present situation, I have heard all the encouraging words from the Government—and rather less encouraging words from the European Union—that there will be a resolution of the Northern Ireland situation. But it has not happened. In my view, we are no nearer to a solution being presented by the Government than we were in Committee or a year ago. The situation today, on Report, requires us to vote for this well-constructed amendment because this will tell both our Government and the European Union that this is a subject that cannot be neglected. Indeed, this subject should never have been part of Brexit. It is something that should have been negotiated in the first week so that we were not sitting in your Lordships’ House worrying—and this is the greatest worry of all—about Brexit as we approach, rather more quickly than we would have wished, 29 March next year.

We must give every bit of encouragement to an early solution of this problem that does not involve any of the difficulties that we have talked about time and again in this House. If the matter is put to a vote, I encourage noble Lords to go with the noble Lord, Lord Patten, and to follow his eloquence into the Content Lobby.

[Lord Eames (CB)]

My Lords, a few weeks after the result of the referendum was announced, I ventured to suggest to your Lordships’ House that the question of the border between Northern Ireland and the Republic would suddenly become crucial to the outcome of the Brexit negotiations. On that occasion, several noble Lords told me not to worry; I was told that, like all things, it would find its own place further down the line on a coming day.

With what I hope is self-imposed humility, my feeling now is “I told you so”—not because of a line on the map that could be easily seen in any atlas, but because of the symbolism of what that line stood for in the development of the island of Ireland, particularly Northern Ireland. That line is no longer our border; it is your border. It is our collective border with the EU, so some of the significance of what has worried us in continuous Brexit debates takes on a new light for one simple reason: the people of Northern Ireland are not on their own in worrying about the consequences of the border. It is of equal concern, as it should be, to the people of Scotland, Wales and England—the United Kingdom—and because of that, a growing apprehension is developing in Northern Ireland that, if I may say so, we will be left to carry the can. In the light of what has already been said, this is an extremely dangerous apprehension and situation. As has been said by the noble Lord, Lord Patten—not only today but previously —connection with the symbolism of the border touches on culture, politics, social media and education. It covers the entire breadth of the concerns of the people of Northern Ireland.

When I began my professional career more years ago than I care to remember, it would have been unimaginable to talk about the relationship between Northern Ireland and the Republic as we do today. Progress has been made, due not only to political understanding and growing maturity on both sides but, equally, to our having come through the chequered history of the past 30 or 40 years. There is a lot more hanging on this debate than simply the security and arrangements on the border. The reversal—or the danger of the reversal—of all that has been achieved is at stake. The peace process is still a growing infant. The absence of an Administration at Stormont makes it very difficult for one aspect of progress—the cross-border institutions—to work at the moment. A lot of us put faith in those institutions because they were doing practical things in practical ways but now, with the Administration at Stormont absent, it is difficult.

On first glancing at the wording of the amendment, I would have said, “I have no problem with that. I am delighted to support it because it’s saying the things that the people of Northern Ireland want to hear”. Then, I paused. I am still pausing because I have come to the debate in what I call a listening mood. I am listening not just for the constant, ongoing repeat of Her Majesty’s Government giving us assurances. That will not change. It is copper-fastened. It is not that assurance I am looking for from Her Majesty’s Government, but the assurance that says, “We understand that some of the institutions and achievements of your peace process are worth protecting, supporting, keeping in place and allowing to develop”. I want to hear that from the Minister. I do not want to hear the usual repeated reassurance, which, because it is repeated so often, loses a lot of its impact. I look to Her Majesty’s Government to say not just to this House but to the people in Northern Ireland that there are certain things we will stand over.

I turn to the words of the amendment. I ask myself: what is wrong with it? Why cannot I, with my experience over the years, say that this is marvellous, I want to support it and see it through and backed up? It is simply this. Just the other day, the chief negotiator of the European Union visited Ireland. I think he is still there. In the course of a press conference he said that the EU will not allow the conversations to go on until there is sufficient movement by the United Kingdom on the question of the border. I once tried to teach jurisprudence to those who were prepared to listen. As at least one of your Lordships will remember very well, I tried to get through to the students that the secret of success was often to look at the meaning of words. In any negotiation there has to be compromise and give and take. Did the chief negotiator mean that there will be a lot of give and take once we move on the border, or was he saying, “We will move if you move”? Was he going even deeper? Was he warning us that, “Unless certain requirements in the control and operation of our border are met according to our terms, we will not continue to help you to get Brexit”? This might be unimaginable to those who see the road to Brexit as paved with gold, but I suggest that there is a lot more to it.

I say to the Minister, who has impressed us all with the way he has handled the sensitivities of post-Good Friday Northern Ireland: reassure me. Tell me that I am worried unduly that there might be a gap in the words of the amendment from another person I greatly respect. What can he say to me, who has come through so much of the past with and among the people of Northern Ireland, as Primate not just of the Church in Northern Ireland but with responsibility for the whole of the island? I can honestly say that I know a little of what I am talking about.

I have one final point to add to the Minister’s growing vocabulary of life in Northern Ireland. There is a wonderful town, the town of my birth, called Lurgan. Out of that town have emanated a great many wise sayings. The one in my mind at the moment is: call a spade a spade. When you talk, call a spade what it is—a spade; when you talk, tell the truth, because you believe it; and when you pontificate, make sure that you do so with sincerity. So, Minister, I, for one, am listening.