Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Cavendish of Furness Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Cavendish of Furness (Con)]

My Lords, my noble friend Lord Finkelstein never fails to amuse. Less often does he convince me. He says, as so many people do, that no deal will give an economic blow and, like everyone else who says so, does not explain why, but I will come to that later. As I intend to make passing reference to my family business, I start by declaring an interest, which can be found in the register. Before moving to more general matters, I want to raise an important issue on which I would welcome a response from my noble and learned friend the Minister when he winds up. I have given notice of this, although very late in the day.

On 14 January at col. 40, 1 drew your Lordships’ attention to the deeply held concerns of the noble and gallant Lord, Lord Guthrie, former Chief of the Defence Staff, and Sir Richard Dearlove, former head of MI6. They contend that the withdrawal agreement undermines, perhaps fatally, the ability of the British Government to discharge their primary duty: the defence of the realm. They have now joined forces with Professor Gwythian Prins—I hope I have pronounced his name right—emeritus research professor at the LSE, and have addressed the issue by proposing a defence treaty between the UK and EU.

These three highly distinguished men implore Parliament to prioritise national security in these words:

“We commend it to Government and Parliament and urge its immediate adoption as a safe re-statement of long-established tenets that are essential to maintaining the defence of this Realm”.


What consideration are the Government giving to this proposal, having in mind the huge implications that it contains? Given that the party opposite’s leadership has a habit of siding with those who are not always our friends, perhaps the noble Baroness, Lady Hayter of Kentish Town, may wish to comment on the proposed defence treaty and her party’s commitment to keeping this country safe.

It is fair to say that the affection in which I hold my country and its people, far from being corroded by the cynicism that sometimes accompanies growing old, is actually growing warmer. Over six decades or so, I have at intervals been deeply disappointed by the results of those general elections that did not go the way of my choosing. With hindsight, I understand now that the people were always right and, accordingly, I have an ever-increasing respect for and trust in my fellow country men and women.

When the people lend the political class their wisdom, they are owed something in return. I have read and listened to a large number of contributions over the last few months from people from all walks of life who voted to remain in the EU but who not only accept the result but embrace it and seek to explore the opportunities that leaving the EU may present. That such people have experienced disappointment is of course beyond doubt and I pay warm tribute to them for their acceptance of the democratic process. I have been told by several speakers today that the minority never get a look-in, but I have shown my respect to that section repeatedly.

There is a distinctly different cohort who have been referred to, who also voted to leave, who refuse to accept the result, often pretending that they do, and resort to every kind of device to reverse Brexit or at the very least salami-slice it to the point where it becomes Brexit in name only. It is not the beliefs of these “reversers” that are so objectionable; it is their insistence that they are right and that the people are wrong. They are members of a readily identifiable elite who openly conspire to overturn the referendum result by trying to delegitimise the vote using specious arguments essentially denying the mental or moral capacity of ordinary voters to decide important issues. With those who challenge the intellectual or moral capacity of ordinary voters, there is always an underlying assumption that somehow the more educated sections of the population have more wisdom or judgment in making political decisions. It is plainly the case, and history surely shows, that the highly educated are no more gifted with political wisdom or insight than anyone else. I tend to side with William Buckley who said in 1963 that,

“I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University”.

However, I wonder whether there is not something else at work here: fear among the political class surrounded by things of which they perhaps have incomplete understanding. Here I include some of the mandarin class, having listened to some of that class this afternoon. There are many people, not least in your Lordships’ House, whose intellect I envy and whose achievements I hugely admire, but the regrettable way in which our institutions have evolved has meant that pitifully few of these clever and able people ever get anywhere near the rock face of our nation’s entrepreneurial journey. I look at this speakers’ list and I think I could count on one hand the contributors who have ever built, grown, manufactured, marketed or exported anything.

As I have said before, I do not know what a so-called deal will mean for my family. I suspect there will be problems and that we will not be able to avoid them. It will be no different from the usual surprises that regularly confront those of us who take risks. We intend to be ready for them. I rather take the view that the pain and disruption will never exceed the pain and disruption visited on us at regular intervals by the Labour Party’s paymasters. I am utterly bewildered by the spineless defeatism on the part of a majority of politicians and, of course, most of the media in the face of a clean break. Many speakers say how much they dislike no deal, as did my noble friend Lord Finkelstein, but rather fewer say why.

The people of this country want their stolen sovereignty returned to them. They want to be governed once more by people who are accountable, and they want the issue resolved now. In 2016 the electorate was asked to give a verdict, in 2017 Parliament overwhelmingly endorsed it, and now is the time for Parliament to ensure its delivery. Trust in our political system is at stake. The cost of betrayal will have no limits. The millions who feel betrayed will seek remedies in ways that we have no means of predicting. The noble and learned Lord, Lord Hope, said that he fears an explosion of rage, and so do I.

European Union (Withdrawal) Bill

Lord Cavendish of Furness Excerpts

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

[Lord Hannay of Chiswick (CB)]

My Lords, I was urged by my noble friend Lady Deech to be more polite to President Trump, so I will respond to that by thanking him extremely warmly for having brought home to us the value of the European Union’s common foreign and security policy. In the year he has been in office, he has singlehandedly illustrated why our national interests in a number of areas are much closer to those of our European partners than to those of his Administration: for example, as regards the nuclear deal with Iran, the rather unfortunate decision to move the US embassy to Jerusalem, his very lukewarm support for NATO, his withdrawal from the Paris climate change agreements and his trade policy. In all these areas he has brought home to us why this debate and this amendment, which I support, are vital to our future national interests. I hope that when the Minister responds, she will be prepared to go a bit further than generalities.

As others have already said, there is a complete lack of specificity in what the Prime Minister has said—she has, quite laudably, set out in very firm terms her desire that this should be a major pillar of the new partnership—about what the Government have in mind. It really is time that we saw more. The Prime Minister has spoken about a new treaty. We are in a negotiation. Normally, if you are in a negotiation and make a proposal, you table it. I have not seen the treaty. Has anyone seen it? I do not think that anyone has. Does it exist? I suspect not because, judging from the rather lukewarm attitude of the Foreign Secretary, he might not be able to produce much of an input into it.

This really is getting important now. We are only a year away from dropping out of all the complex machinery which makes the common foreign and security policy work. I have to say to my noble friend Lady Deech that her caricature of common foreign and security policy is bizarre. For example, the idea of a nuclear agreement with Iran originated in the European Union, and it was followed up, rather belatedly, by the United States. Therefore, I do not think that we should belittle such co-operation. In any case, the Prime Minister is firmly of the opinion that it matters and that we need to work very closely with the EU. I wonder whether it would not be better to say here and now—perhaps the noble Baroness the Minister replying to this debate could do so—that our co-operation in this area of common foreign and security policy is not subject to the rubric “Nothing is agreed until everything is agreed” and that it is, as we are trying to say but have been rather hesitant about saying, completely unconditional.

[Lord Cavendish of Furness (Con)]

My Lords, is the noble Lord aware that the phrase “Nothing is agreed until everything is agreed” came from President Tusk, not us?

[Lord Hannay of Chiswick]

It was not only President Tusk; it was part of the agreed conclusions of the first part of the negotiations—that is, we subscribed to it too.

As that first stage did not cover common foreign and security policy, all I am suggesting is that, now we are moving into that field in the negotiations, we should make it clear that our proposals—including the proposal for a new security treaty—are not subject to “Nothing is agreed until everything is agreed” but will be put forward to the mutual benefit of all parties. That would make a huge difference, because there is a lot of misunderstanding and a certain amount of suspicion that we are approaching this in a spirit of transactionalism—that we are trying to trade off one part of the negotiations against another. That would be a mistake in the field of common foreign and security policy. If it is to be pursued after we have left the European Union, it can pursued on a basis of mutual benefit only and not by a transactional approach.

Therefore, I hope that when the Minister replies to this debate she can give a little more clarity on what the Government are seeking and that she can state in absolute terms that the unconditional nature of what we are pursuing here is our policy.

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[Lord Adonis (Lab)]

My Lords, I have four amendments in this group, which, following on from what the noble Lord, Lord Hannay, has just said, seek to maintain British membership of the EU’s Political and Security Committee, the EU’s common foreign and security policy, the EU Foreign Affairs Council and the EU Intelligence Analysis Centre.

First, I warmly welcome the noble Baroness to the Front Bench and to our debates. We have very high hopes of her and her response to this debate because she is not the noble Lord, Lord Callanan. We regard her as the more accommodating face of Her Majesty’s Government. We think that, while the noble Lord, Lord Callanan, is not on the Front Bench at the moment, she has an opportunity to make all kinds of very sensible statements of government policy which can then go on the record and we can move on from there. This is a golden opportunity for her to do so in respect of foreign policy.

The noble Lord, Lord Wallace, made a very powerful speech on why it is important that we remain thoroughly engaged in the security apparatus of the European Union and he spoke about the big dangers that face us as we leave. I do not think there is any point in my repeating those remarks or those of the noble Lord, Lord Hannay. I just want to make two comments.

The first relates to the only speech that the Prime Minister gave, on 25 April 2016, in the debate on the referendum, where she weighed the arguments for remaining in the European Union. What is so remarkable about that speech is how much emphasis—it was an almost exclusive emphasis—she placed on the security aspects of the European Union and the dangers to our security of leaving. Clearly, given her experience in the Home Office, she was particularly concerned about some of the Home Office dimensions of that, and we will cover those in a later group. However, she also raised the broader security issues.

If one looks at the words that she used in that speech, it is very clear that she regarded membership of the multilateral institutions of the EU, particularly in foreign policy and security co-operation, as being of huge importance to the Government and to this country. She said:

“If we were not members of the European Union, of course we would still have our relationship with America … But”—


these are the key words—

“that does not mean we would be as safe as if we remain”.

As the noble Viscount, Lord Hailsham, said, we will be leaving all these institutions in one year, and I believe it is incumbent on the Government to give the House some sense of what their policy will be in respect of those institutions. That is hugely important.

My second point is to consider the course that we now appear to be set on. It is what has become known as “hard Brexit”, which is leaving not just the security institutions of the European Union but the economic institutions—the single market and the customs union. I am a novice to international security policy. I have spent most of the last 15 years trying to reform public services at home and, like many other noble Lords, I have had to get to grips with these issues. One of the most important and, for me, influential books that I have read while I have tried to understand what this might mean for the future of Britain in Europe and globally is by Professor Brendan Simms at the University of Cambridge. He has written a quite brilliant book called Britain’s Europe: A Thousand Years of Conflict and Cooperation, which charts our whole relationship with Europe during the last millennium.

Professor Simms makes a quite obvious point, the significance of which becomes greater and greater as we appear to be heading towards leaving not only the security but the economic institutions of the European Union. The basic but fundamental point he makes is that countries which are engaged in trade conflicts and trade wars find it that much harder to co-operate on security issues. To my mind, in terms of the security of the United Kingdom going forward, the most alarming development at the moment is that, as we appear to be in an ever more tense and potentially conflictual relationship with France and Germany in particular over the future of our trade policy, and if we are to start engaging in tariff wars and setting up rival customs arrangements and things of that kind which could lead to quite significant trade conflicts, that can only weaken our security co-operation with them over the medium to long term.

Those of us who are in favour of remaining in the European Union are often accused of carrying out what is called Project Fear, but I recommend to the Minister and to noble Lords the Prime Minister’s speech of April 2016. She draws a direct parallel between the instability of relations between European powers before 1914 and what could happen if we start to fracture those relations today. That came from her, not me. Therefore, what we look for from the Minister while she is able to make positive statements about Europe in the absence of the noble Lord, Lord Callanan, is some indication that she appreciates the need for very close co-operation with our European partners on trade and economic matters, not least because that will tend to promote close alignment in foreign and security policy.

[Lord Cavendish of Furness]

My Lords, does the noble Lord not realise that those of us who advocate leaving believe in free trade, which has been a great source of peace, rather than conflict, throughout history? He belongs to the side that wants tariffs.

[Lord Adonis]

My understanding is that it is the policy of Her Majesty’s Government to put in jeopardy the free trade we currently enjoy in the European Union. If the Government were in favour of free trade, we would stay in the customs union and in the single market. These are straightforward, obvious propositions. The policy of the Government tends only towards reducing free trade with the single biggest set of trading partners that we have at the moment.

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[Lord Kerr of Kinlochard]

I suspect we will find out. To me personally, this is an extremely sad moment. When I was ambassador to the European Union I found that the things I was allowed to suggest as policy prescriptions were taken seriously in Brussels, partly because it was assumed that if the EU followed the British prescription, the British would ensure that the Americans came in behind it. When I was ambassador in Washington I found the same. Access to and influence on the President was a function partly of the perception that, on a foreign policy issue, the British could call the shots in Brussels.

I am glad that this discussion started with a tribute to Lord Hurd of Westwell, who was the exemplar of how to handle common foreign and security policy. I am glad too that it started also with a tribute to Lord Carrington. The original EPC was, in many ways, a British construct. CFSP as it emerged, with the strong support of the Healeys and the Callaghans, was Douglas Hurd’s construct. The European External Action Service was a British proposal. We punched more than our weight but we have to accept that when we leave the European Union, if we do, that is all gone and we should not pretend that we will have the same influence from outside. What should we do?

[Lord Cavendish of Furness (Con)]

Can the noble Lord explain to us why it is not in the interests of our European partners—100% in their interests—to co-operate as we have always co-operated before?

[Lord Kerr of Kinlochard]

I am coming to that. I agree entirely that co-operation is in everyone’s interests. This is one of the areas of negotiation where we are not talking about a zero-sum game; rather, we are talking about a common interest, so I agree with the noble Lord. The point I am making is that we are in the next room. We are not in the room where the decisions are taken. We need an offer and an architecture for the next room. We need to come forward very soon and say, “We are prepared to consult on everything in the area of the common foreign and security policy. We are prepared to consult before every great debate at the United Nations. We would like to consult about every conflict area where Europe should have a view and possibly a presence. We would like to go on contributing our analysis and our intelligence. We would like you, o European Union, to build an annex to the Council—the room next door where we, who we hope will be your closest partner in co-operation on foreign policy, will be consulted by you and will consult you”.

A moment ago the noble Lord, Lord Liddle, made the point that the timing is very important. If we leave the European Union in March 2019, we will leave the Council and there will be no such structure in existence. I should think that something will be invented in the end, but there will be a period of hiatus when we will do the best we can. It would be much better if the United Kingdom were now to put forward an offer and an architecture. It would be much better if there had been a third section to the Prime Minister’s speech in Munich in which she had said, “This is how we envisage it working”. I do not see, particularly on the common foreign and security policy, why we should leave it to the European Commission. There is no great expertise on this in the Commission. It seems that it would have been better on a number of the dossiers in this negotiation if we had actually decided to play at home rather than play on their turf. It would have been better if on every issue we had not waited for the other side to make a proposal.

This is the locus classicus. This is the area of our greatest reputation in Europe. We invented the existing structures in this area, which we are now going to walk away from. This is the area par excellence where the other countries would like to co-operate with us. Why do we not put forward a proposal now? That is why I can support very happily Amendments 12 and 185, but I fear that there is no point in pretending that we can remain, on particular issues, a member of the club. We will have left the club, so the best we can do is try to be its closest partner on the common foreign and security policy.

Civil Procedure (Amendment) Rules 2017

Lord Cavendish of Furness Excerpts

Wednesday 13th September 2017 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, I wonder if I might address the points made by the noble and learned Lord, Lord Brown, not from the point of view of his confidence in flexibility and the wisdom of judges but from the point of view of the people who regularly have to consider whether they are willing to put forward their personal assets and privacy and, indeed, of those organisations representing the public which are placed in that position. I should declare an interest: I am president, vice-president or chairman of practically half the conservation and environmental organisations that are involved in these cases.

I very much welcome the Motion to Regret of the noble Lord, Lord Marks, and I really do regret the way that the Ministry of Justice has barrelled on to implement the removal of the cap on claimants’ costs in environmental cases, in spite of the criticism by virtually all consultees and the views of the Secondary Legislation Scrutiny Committee, which I thought issued its opinion in a rather more trenchant and stinging way than I have seen it operate in the past, which was interesting.

As a country we have been criticised for some considerable time by the United Nations and others for our lack of compliance with the Aarhus convention. I was interested to note that yesterday the noble and learned Lord, Lord Keen, in briefing Peers on the Brexit Bill, said that although we will lose recourse to the ECJ in relation to environmental issues, our responsibilities under the Aarhus convention will remain. Alas, our responsibilities under that convention are not being delivered on a regular basis and we continue to be criticised internationally. Therefore, I regret the MoJ’s move as it takes us even further away from compliance.

I have personal experience of being involved with charities that have initiated judicial review in these circumstances. These charities are representatives of communities. The trustees of these bodies take very seriously their responsibility to represent communities on these important issues. However, they are now incredibly wary of committing to challenge the decisions of public bodies through judicial review as they can have no assurance—other than the sorts of assurances which the noble and learned Lord, Lord Brown, attempted to give on the judiciary—that costs will not escalate and that they will have no influence over that as the cap can be changed at any stage in the process.

For individuals or unincorporated public bodies contemplating initiating a judicial review against a public body, the unpredictability and possible scale of the costs, the need to demonstrate the ability to pay and the risk to their homes and other assets are, indeed, chilling. Therefore, we have a situation in which individuals are being placed in a position where they have to think long and hard about taking such a case, as do responsible, publicly focused charities.

We do not know how many cases fail to be taken and how many people are deterred by these new arrangements as those decisions are made by individuals, families and communities and, in the case of charities, made behind closed doors. As an ex-chief executive of several charities, I suspect that charities would have to have pretty brave boards of trustees to undertake what is likely to be expensive judicial review under the current circumstances. We are very much seeing communities being priced out of environmental justice. I therefore urge the Minister to reconsider this decision to remove the cap and I urge noble Lords to support a reversal of this measure.

[Lord Cavendish of Furness (Con)]

Before the noble Baroness sits down, and for the sake of clarity, what exactly did she mean by charities being communities? What is the status of that?

[Baroness Young of Old Scone]

My Lords, I am delighted to explain that. In many cases our charities are the voice of the public and constitute the way in which the public organise themselves to have a voice in environmental challenges. As a nation we are blessed with a rich range of charities in the environmental field, which have operated for many years in hugely responsible ways to hold government to account on behalf of the communities in which they operate. I have much experience on both sides of this equation, having taken cases on behalf of charities such as the RSPB and having been on the receiving end of cases when I was chief executive of the Environment Agency. I value the role of charities, as do local communities.