European Union (Notification of Withdrawal) Bill

Lord Empey Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 27th February 2017 Lords Chamber

[Lord Dubs (Lab)]

My Lords, I remember that at the time of the negotiations leading up to the agreement in Belfast, the EU was there in the forefront being supportive, and indeed EU finance developed cross-border projects and played a significant part in the process.

I want to make two points. First, whatever we think, we know that the Irish Government are deeply concerned about this issue. We are belittling their concerns if we say, “We don’t need to bother about this amendment because it’ll be all right in the end”. We all know that the previous Taoiseach, the present one and many other people are very concerned. We owe it to them at least to show that we are concerned about the situation.

My key point is that I think it would be right to have the amendment in the Bill if for no other reason than that it would send a signal to Brussels. It is all right saying that the Prime Minister will do her best in the negotiations, but I would have thought that in her position she would be much better off if we had the amendment in the Bill; it would strengthen her resolve and she could say, “The British Parliament is so concerned about it that we have put it on the face of the Bill”. That is why we should move forward with the amendment.

[Lord Empey (UUP)]

My Lords, I notice that the amendment has been signed by virtually a who’s who of people who have had a high profile in Northern Ireland affairs over many years. For that reason, one has to take seriously what has been put before us. The truth, though, is that today we have really been having a Second Reading debate, not a debate on the amendment. I suppose that in the absence of a Speaker to slap us down, we will probably all be tempted on to that turf.

There are a couple of things I want to say at the outset. I have heard absolutely no one, in any political party or any Government, say that they wish to see a hard border. The closest we came to anyone saying we had to have one was the official to whom the noble Lord, Lord Hain, referred. No one wants it. The British-Irish Parliamentary Assembly, which a number of us are associated with, is working to ensure that it does not happen. Both our Governments are working to that effect, and Brussels has openly said it has got the message. With that sort of momentum, I believe we will find means.

I disagree with the noble Lord, Lord Hain, to the extent that at this stage I would rule out nothing electronic or technical, or indeed any form of technology. We do not need to paint ourselves into a corner; it all may have a part to play. I am quite sure that it already has a part to play in everyday life, in tracking criminals and so on, so we should not rule out what could be a contributing factor to finding what we all want, which is a solution other than concrete and barbed wire. Why should we rule out one possible solution at the very outset?

The House is greatly adorned by many senior legal figures who have demonstrated their robustness and capability in recent months. I am not a lawyer—I am absolving myself of any responsibility in advance—but we have had two recent cases that I wish to refer to. My fundamental disagreement with the amendment is that it is my belief that we are making a mistake in linking the Belfast agreement with triggering Article 50; they are two totally separate things. That is not just me talking. I refer to the two cases against Brexit that were brought to the Belfast High Court last September, one by a well-known victims campaigner and the other by a group of human rights organisations and Stormont politicians, including the leaders of the SDLP, the Greens and the Alliance and a Sinn Fein former Minister. The premise of each case was that taking Northern Ireland out of the EU would breach the Belfast agreement. The High Court heard both cases together and rejected them on every point.

It is worth a quick run-through of those points to demonstrate how comprehensively the breach has been debunked. The plaintiffs claimed that the constitutional establishment in Northern Ireland was being changed without the population’s permission, contrary to the consent principle underpinning the entire peace process. They said that the nine mentions of the EU in the agreement mean that membership is “inextricably woven” into the law enacting it. However, the High Court in Belfast came to the conclusion that references to the EU in the agreement are “incidental”—the judge’s own word. The Northern Ireland Attorney-General, John Larkin, decided to refer some aspects of this to the Supreme Court because, although he felt there was no link, he wanted to make absolutely certain that there was clarity at the highest possible level.

When the Supreme Court produced its decision in the Miller case—a split decision, although there was a substantial majority—it was unanimous on the issue specific to the Northern Ireland case, and said, without any caveat, “This is not a breach”. That is the highest court in the land. When it came to other treaty issues, such as the treaty between the United Kingdom and the Republic of Ireland that deals with the border poll and issues surrounding that which are obviously linked to this group of amendments, it added that nothing about Northern Ireland’s removal from the EU breached any law, any treaty or any part of the constitution.

We were all horrified when the headline “Enemies of the People” appeared before us some months ago and, when the Gina Miller case came to a conclusion, everyone said that we must respect the views of the court and accept that a decision had been made. Here we have the clearest of clear decisions—that there is no breach of any treaty, of any Act or of the constitution as a result of the decision to leave the European Union, whatever we happen to think of that decision. I therefore contend that the amendment is defective, in that it tries to put on the face of the Bill an agreement that is not relevant, when no offence or violence is being done to the constitution of the United Kingdom.

The noble Lord, Lord Hain, said that one possibility was to devolve immigration powers to Stormont. If we did that, I assure noble Lords that people would need a pass to go from County Antrim to County Down. The last thing we need is to devolve immigration powers to Stormont. Stormont cannot agree a budget; it cannot agree anything at present. Sadly, the place has fallen in on itself again. The idea of giving it an immigration power is fanciful, and would be extremely dangerous.

The concept of special status has been mentioned. That term referred to the special category status of prisoners in the Maze prison—or Long Kesh, as it then was—which led to the hunger strike. “Special status”, certainly to a unionist, means something less than being part of the United Kingdom—and that is exactly what it would be. The fact remains that either we are in the United Kingdom or we are not. When we were trying to design the Belfast agreement—I thank my noble friend Lord Trimble for giving me and the noble Lord, Lord Kilclooney, the opportunity to be part of the team that negotiated it—we found ways, through that agreement, of resolving these very difficult issues.

The problem with leaving the European Union is not breaches of the Belfast agreement; the political problem is leaving the European Union. It may be what is upsetting a lot of nationalists, and a lot of people in Dublin, but it is not relevant to this Bill. There is something I want to say to Ministers about this—something I have raised with them many times, both privately and in this House. When it comes down to it, we need assurances that there are red lines in the forthcoming negotiations, and one of those red lines must be that there will be no internal border within the United Kingdom.

We have been talking about the border with the Republic, and I totally agree about an open free border. I had the privilege of being the Northern Ireland Minister who started up InterTradeIreland and Tourism Ireland—two of the north/south bodies—and I can say that nobody I have come across wishes to see any border, in terms of a physical construction.

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[Lord Empey]

My Lords, the noble Lord, Lord Newby, is one of the most distinguished Members of this House. I gently say to him that I do not think that I have heard him defend an argument in such threadbare circumstances. We have sometimes been lectured on the fact that we have a representative parliamentary democracy. Now we seem to have developed referendumitis. What about the implications of this proposal for Scotland? What would it do to the Scottish nationalist argument? We said that we were having a referendum for a generation. This would open the door to the argument, “If they can do it for Europe, they can do it for us”. That is the second time that that has been mentioned today.

The ball was dropped, if dropped it was, when the referendum Bill came to this House. That was the opportunity to put in a back-up clause to say that we would put it to the test at the end. Speaking for those of us who have had referenda—in our case, the border poll in the 1970s, on the Good Friday agreement in 1998 and the potential for another one—if we are going to do this on an ad hoc basis to suit a party management situation, or a bright idea someone happened to come up with, we will destabilise the whole constitution of the United Kingdom. I caution Members on this. The time to fix this was when we started it. We should have put it in the Bill. If I recall, this House was silent when it came to that question in the Bill. That was the opportunity to do it. The question asked was amended by the Electoral Commission, if I recall correctly, which produced the clarity in the question. There was no caveat or qualification.

If we send Ministers to Brussels to negotiate with Michel Barnier and so on—

[Viscount Ridley (Con)]

Further to the point that the noble Lord is making, I remember spending long hours discussing the referendum Bill in this place. One of the things that we particularly discussed was the need to make sure that this was a decisive result that was accepted by the losing side as well as the winning side. Those of us who then went into the campaign with all sorts of disadvantages because of the Government’s ability to spend and so on were none the less just about content that, if we lost, we would be able to accept the result. The other side appears not to have come to that conclusion.

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[Lord Empey]

I am grateful to my noble friend. Perhaps I should rephrase what I said: we were silent on amending the legislation to provide for a second referendum. Therefore, the Electoral Commission changed the wording, which was accepted to get the clarity that we need.

I fear that if we go down the road of trying to send Ministers to Brussels against the backdrop of a number of these amendments, we would not be sending Ministers with whom Brussels will negotiate. We are sending a second 11: we are sending delegates, not Ministers. As someone who has been in a prolonged negotiation, I know that it requires a stretch on the part of both parties. If you were sitting in Brussels and were minded to try to reach an agreement with our Ministers, why would you stretch yourself outside the four freedoms or take a big leap if you thought, first, that you were not dealing with people who could make agreements with you and, secondly, that you would be shot down because there were people in this Parliament and in this country who could undermine you after you had made the effort to reach an agreement? There are a number of amendments along these lines. We need to think carefully of the mechanics and atmosphere around the negotiating table.

[Lord Flight (Con)]

On the territory about which the noble Lord is talking, I cannot understand, if negotiations have gone on for two years or more and we have finally agreed all the thousands of things that need to be agreed, how we could possibly then put it to a vote. The whole process of negotiating the deal with the EU will not work if we have a vote at the end.

[Lord Empey]

One way of dealing with it would have been to make it clear that we were going to put things to a vote at the end. But now we are in a position of risking getting any kind of meaningful negotiation from Brussels because we would be sending people there who are incapable of making an agreement. We understand that it has to be approved by Parliament. Let us not forget that the European Parliament has to approve it—anyone who has had experience over there will know that that will not be a pleasant experience. I caution the noble Lord, although I understand what he is trying to say.

[Lord Robathan (Con)]

But is that not the point of the amendment—to undermine the negotiations and, in fact, reverse the decision?

[Lord Empey]

I cannot attribute the motivation. The noble Lord has his view. I am simply saying that if we are going to send people to Brussels to do a good deal for us—and whether they can, I do not know—the one thing we cannot do is saw their legs off before they go; otherwise we will get absolutely nothing.

[Viscount Hailsham (Con)]

But the noble Lord will recognise that that is already the case under Section 20 of the 2010 Act. Every treaty has to be ratified by Parliament. If that is true of every other treaty, why not of the present negotiations?

[Lord Empey]

I am not opposed to the concept, of course. We have already said that it is going to be ratified by Parliament. I make the point that if these amendments are inserted—and there are others on the Marshalled List to be dealt with at a later sitting—we are going to send a team of people to negotiate on our behalf. Clearly people in Brussels will say, “These people do not have the juice to do a deal so why would I take a political risk as a Brussels negotiator to stretch out towards them”—which is what is going to be needed on both sides—“because they know that they have no chance of getting a deal at the end of the day?”.

[Baroness O'Neill of Bengarve (CB)]

My Lords, we have already seen this afternoon in our very serious debate about the implications of the present situation—let us put it neutrally—for Northern Ireland that the referendum was, in fact, about a matter of the greatest constitutional importance and about the integrity of the United Kingdom, a great worry to any of us who come from Northern Ireland. However, although I agree with my noble friend Lord Empey that we should not tie the hands of negotiators, that a referendum at the end is a bad idea and that one constitutional error cannot be remedied by another constitutional error, nevertheless something needs to be said about the possibilities of no deal or of a bad deal. Those are two realistically possible outcomes. I think that at this stage it should be possible for the Government to say a bit about their plans in the event of either contingency.

European Union (Notification of Withdrawal) Bill

Lord Empey Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Empey (UUP)]

My Lords, we might still get the opportunity to wish our Welsh colleagues a very happy St David’s Day. As somebody who has a maternal name of Owens and a fraternal name of Morgan, I suppose there might be some fellow feeling there— I do wish noble Lords a very happy St David’s Day. That is probably the departure point of any agreement there might be between the noble Lords who proposed these amendments and me.

Let me say at the outset that I fully accept the principle that every effort should be made to engage the devolved Administrations. Anybody who has been in this House, even for a few years, knows how things across the United Kingdom are terribly London-centric. Indeed, that was part of the reason for the upsurge of negativity at the time of the referendum; people rejected the “London bubble” approach. We have seen that repeated on a number of occasions.

The Prime Minister has indicated that she has been trying to engage, but there is a big difference between making a genuine effort to engage with the Administrations and putting things in the Bill. Amendment 36, for example, states:

“The Prime Minister may not exercise the power under section 1(1) until at least one month after all devolved administrations have agreed a United Kingdom wide approach”.


I can assure noble Lords that we would then never trigger Article 50, because there will never be agreement. Why would there be? Why would Nicola Sturgeon agree to participate in something to which she is opposed? Sadly, in my own circumstances in Northern Ireland, we are on the eve of elections and the Assembly —the Executive—has effectively imploded. The two parties leading the outgoing Executive could not agree on anything except a two-page letter last August, which has been their sole contribution since we took the decision to leave the European Union.

Unless there is a very significant change in voting patterns—which could happen, and I hope it does; there would then be the outside chance of getting an Administration we could work with—things will be the same. We will know by the weekend if that is not true. If patterns are repeated, we know what will happen. The Brexit Secretary came to Belfast in September and instead of meeting an Administration to hear their views, he had to have two meetings in the First Minister’s office, one with one party and a separate meeting with the other party. They could not even meet him together, so how could the Prime Minister conduct any business on behalf of the Government if such an amendment were made?

As for the powers that would be repatriated from Brussels, may I just remind the Committee that in agriculture, for instance, there has been nobody in the United Kingdom with any policy-making capacity for 40 years? There is nobody. We have not been doing it. The policy has been made in Brussels. We do not even have this in Whitehall, never mind in the devolved Administrations. We would have to consider issues such as a national food policy and various other things. These are complicated issues, but they are not for putting in the Bill.

[Lord Wigley]

I understand that in broad agricultural terms there is a European policy, but the agricultural policies followed in Wales at the micro level have been very substantial. Some of the powers being repatriated from Brussels would undoubtedly fit in with the powers that have been exercised on agriculture in Wales over the past 18 years. It would be ludicrous if they were not there.

[Lord Empey]

I am not disputing that. We have had agricultural powers in Northern Ireland for even longer, but they are confined within a broad policy set by the CAP. Yes there is micro stuff, and I am 100% for that; I am simply saying that there is a big gap. However, we are talking about putting these amendments into the Bill, and that is a different matter entirely. This is a perfectly sensible discussion to have, and I totally support the idea that there has to be real and meaningful engagement between the Government and the devolved Administrations. I have sat on the JMC, and there are all the players on it that we need—provided that they are prepared to work with each other. Sadly, the evidence is that they have not done so.

I hope that the Prime Minister persists, and however she has to do it—through informal mechanisms, or whatever—I would be 100% in favour of that. However, I come back to the point that we are talking about a Bill to trigger Article 50. The idea of handing things over to devolved Administrations that are hostile to the very concept and expecting them to go along with it is totally unrealistic. I therefore oppose the amendments.

[Baroness Ludford]

My Lords, I want to add the support of my Front Bench for the amendment and the words written by my noble friend Lady Randerson. Not only do I personally not come from Scotland, Wales or Northern Ireland, but I am a Londoner, and I want to make it clear that it is not just the people represented by the devolved Administrations who care about diversity and plurality in this nation. Frankly, none of us, even Londoners, can be at ease if the union does not work properly.

In discussions on the Bill I have heard a lot of people say that they agree with the substance of what is being proposed, but that it must not appear in the Bill. I think it is about time to put some things in the Bill. The noble Earl, Lord Kinnoull, said something on this subject. Amendment 21 is only about arrangements for consultation and how views are to be taken into account; it is about mechanics. So some of his criticism was not quite justified.

European Union (Notification of Withdrawal) Bill

Lord Empey Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Empey (UUP)]

My Lords, I believe that citizenship is not threatened by the decision of the United Kingdom to leave the European Union. Indeed, I am absolutely certain that people of whatever outlook can be confident that the undertakings given to them will be honoured. I refer to the Good Friday agreement, where in the section under constitutional issues, paragraph vi of Article 1 refers to recognising,

“the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”.

We can link that to the matter that I brought to your Lordships’ attention in the debate last week. We go back to our friends in the Supreme Court, who said that the Supreme Court has now unanimously endorsed the Belfast ruling without caveat, which was to say that the rights of people in Northern Ireland were not affected by Brexit—but the Attorney-General John Larkin decided to put the case to the Supreme Court for clarity, and it is a good thing he did. That included the three judges who were dissenting from the final judgment in Miller. Furthermore, because there will now be a UK Parliament vote on Article 50, the court added that nothing about Northern Ireland’s removal from Europe breaches any law, treaty or part of the constitution.

Therefore, I contend, though not being a lawyer, that the position of citizenship is secure. As the noble Baroness, Lady O’Neill, clearly indicated, that goes back way before the Belfast agreement ever existed. In fact, the Irish constitution, before it was amended in 1998, made it absolutely clear that any person born on the physical ground of the island of Ireland was an Irish citizen, which has pertained ever since. It was reinforced in the Belfast agreement, but it says that it shall,

“not be affected by any future change in the status of Northern Ireland”.

In other words, people argue that leaving the European Union changes the status in some way, but the Supreme Court says that no injury is done to any treaty, law or the constitution.

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[Lord Empey]

I am obliged to the noble Lord. Would he not confirm that, even going back to 1998, one of the principal objectors to drawing a line or trying to treat everybody equally was the Army? It did not wish to be treated in the same way as terrorists who were being prosecuted. It wrote to the Government at the time, objecting strongly to being treated in the same way as ex-paramilitary prisoners. I understand that the security forces still object to that. It is an issue that needs to be addressed. I hope that the noble Lord is at least aware of it.

[Lord Hain]

I am aware of it. It is more complicated than the view that the noble Lord attributed to the Army—but my noble friend Lord Reid may be able to clarify.