European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Davies of Stamford]

My Lords, as I have explained, I do not accept that we are in any way under instruction from anybody. I have heard the word “instruction” and it deeply shocks me. As a matter of fact, I heard it from the then Leader of the House in the days following the referendum. For the reasons that I have already set out and I do not need to repeat, that is a pernicious doctrine that is extremely dangerous in its constitutional ramifications and should be rejected.

[Lord Hamilton of Epsom (Con)]

My Lords—

[Lord Davies of Stamford]

I will not give way for the moment; I would like to make a bit of progress.

I agree with the noble Lord, Lord Wigley, that even if you were to believe that we are under some kind of instruction relating to Brexit it certainly could not apply to the issue of our remaining in the customs union or the single market. I do not remember that issue being mentioned at all in the referendum, certainly on the customs union. As we all know, there was nothing on the ballot paper about it. The noble Lord, Lord Robathan, intervened to say that he remembered some mention of it by certain people during the campaign. I would be very interested if he could put on record the particular dates, times and places where those comments were made, because I reckon I was pretty alert to what was being said during that campaign, in which I took an active part. I never heard the issue of our remaining in the customs union being dealt with at all, let alone seriously analysed and considered. I do not think that the British people had any chance on that occasion to express a preference one way or the other on that matter. As the noble Lord, Lord Wigley, said, that is a matter of practical fact. Parliament must be sovereign and must take what will be a very important decision.

We all know the potential damage that this country will suffer from Brexit. A lot of it will be from our leaving the single market. Admittedly, some of that damage can be mitigated by our signing a free trade agreement with the EU, but that will not cover financial services, which is such an important part of the country’s economy. There will be great damage from our leaving the EU, even if we are able to sign such a free trade agreement.

On the issue of the customs union, an enormous range of businesses, sectors and companies see this as an existential threat to their continued survival in this country. That goes across all kinds of people, from automotive to aerospace, pharmaceuticals, the nuclear industry and the airline industry. Noble Lords are familiar with the arguments and the very depressing projections made by people from those industries about the costs that they would incur if we leave the customs union.

What is extraordinary is that we have not really heard any of the benefits. It is extraordinary that you can make a proposal for something involving undoubted costs—we can all disagree about the costs and what their extent might be, but we cannot possibly disagree with what sign is on the variable in the equation: it is a negative. The idea that we should incur costs and risks without really knowing what the potential countervailing benefit is seems extraordinarily perverse. No business would manage itself on that basis.

When you press the Government they say, “We need to leave the customs union because that enables us to sign customs agreements or free trade agreements with other countries outside the EU and outside those countries which have themselves free trade agreements with the EU at the present time”. When you actually look at the prospect of doing that you see that it is a mirage; it does not exist at all. Let us take the United States, which spent eight or nine years failing to negotiate the TTIP with the European Union, as the Committee knows very well. Those negotiations broke down partly because of disagreement about the investment guarantees that the Americans were demanding and partly because of the demands being made by the Americans about access for their agricultural products to the single market. Anybody who knows anything about America knows perfectly well that it is inconceivable that an American Administration, let alone a Republican Administration backed by so many Senators and Congressmen from the prairie states and farm states, would ever ratify a free trade agreement with anybody that did not include agricultural products. If it includes agricultural products, of course it includes hormone-impregnated and antibiotic-impregnated beef and chlorinated chicken. Are the British people any more likely than their continental partners and neighbours to accept such products on the market? Would they accept the very appalling animal welfare standards which the Americans have? They have virtually zero grazing for well over 90%, if not very close to 100%, of their cattle at the present time. The idea that you can go through Texas and see lots of longhorn being herded by cowboys as you could 100 years ago is wrong: you will not see a single Texas Longhorn now out in the open air. Those problems will remain and in practice I believe they will be insuperable for us, just as they have been for the rest of the European Union.

--- Later in debate ---

[Lord Hamilton of Epsom]

Can the noble Baroness tell the House what happened before the Republic of Ireland and the United Kingdom joined the EU? At that stage there was a seamless border between two separate countries.

[Baroness Kennedy of The Shaws]

Is the noble Lord at all aware of the number of times there were bombings of customs posts? Is he aware of the number of times there were attacks on those who policed the border? Do we really want to revisit that past? It seems that many do.

--- Later in debate ---

[Lord Tyler (LD)]

My Lords, I do not wish to emulate either the forensic skill or the eloquence of those who have already contributed to the debate but rather ask the Minister a very specific question. He will be aware that in Clause 14—the interpretation clause—there is a specific reference to exit day, which is spelled out in subsection (4):

“A Minister of the Crown may by regulations—


(a) amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and


(b) amend subsection (2) in consequence of any such amendment”.


As the noble Lord, Lord Hain, said, that is secondary legislation. The Minister will be only too well aware that the Delegated Powers and Regulatory Reform Committee, on which I serve on behalf of your Lordships’ House, is already very critical of the number of powers that Ministers are taking under this Bill, not least because it sets a precedent for powers that will be expected by Ministers under subsequent Bills in the series that relate to Brexit. Therefore, it is important for your Lordships’ House to be told very clearly at this stage by what process the Government intend to put that secondary legislation before the two Houses of Parliament. Will it be by the negative resolution, the affirmative resolution or, indeed, the super-affirmative resolution, as that completely changes the way in which Parliament will be able to exert its control, as noble Lords have suggested? If the process is to be undertaken by negative resolution, that is very limited and the powers of the two Houses of Parliament would be so undermined as to be laughable. If it is to be done by the affirmative resolution, there is more opportunity for discussion and either House can decide what should be done in those circumstances. However, I suspect we will be told that this has to be done with such speed that it will have to be done by an accelerated process, which will inevitably mean that there is no proper opportunity for either House to decide whether we agree with this process.

The super-affirmative process may well be selected. The Minister may be better informed than most Ministers on the Government Front Bench but I defy him to spell out to the House this evening which of these options will be put in place. This is of critical importance. We should not just sweep away this opportunity to take this decision. As all noble Lords who have spoken in this debate have said, it is an extremely important one which will colour the views of your Lordships’ House when we look at some of the other powers that Ministers seek to take under the Bill. Again, I refer to the recommendations of the Delegated Powers and Regulatory Reform Committee. If we really are taking back control, here is an early opportunity for the Government to show who exactly is taking back control.

[Lord Hamilton of Epsom]

My Lords, I am somewhat confused by this debate because it has been suggested that the Government have taken a hard line in saying that a decision should be reached on our future relationship with the EU by 29 March next year. It is not the Government’s date; it is the Article 50 date as drafted—as the noble Lord, Lord Hain, acknowledged —by the noble Lord, Lord Kerr of Kinlochard, one afternoon in his garden in Brussels, when he decided that it should be two years from the moment when Article 50 was moved. Therefore, it is not our date, it is the EU’s date, or, more precisely, the date of the noble Lord, Lord Kerr. I do not quite know why we are now saying that somehow this is the Government taking a hard line. When the House of Commons voted by an overwhelming majority to move Article 50, surely that was on the understanding that the negotiations would be completed in two years from when it was moved. Therefore, we now seem to want to go against the other place and tell it that it has decided on the wrong date.

On top of that, the EU has made it clear that it wants the negotiations to be completed not by 29 March 2019 but by October or November this year, so it is bringing the date forward. I do not accept the remarks of the noble Lord, Lord Triesman, on deadlines. Perhaps he found deadlines inconvenient when he was a trade union negotiator, but it strikes me that they are the only thing which works when you are negotiating with the EU, and that everything seems to be decided at the last minute. It is important that we keep to 29 March next year and I would be very unhappy if that were changed.

--- Later in debate ---

[Lord Kerr of Kinlochard]

I should like to respond briefly to what the noble Lord, Lord True, has said. He refers to the Article 50 date. Without deciding where we wanted to go, we chose to send in an Article 50 declaration on 29 March. That meant that we chose when the clock would start ticking. That is my answer to the noble Lord, Lord Hamilton—like Nelson, I cannot resist provocation from a Hamilton. However, there is not a single Article 50 date. There is provision in the article for the possibility of an extension and there is also provision for the exit date to be after the two-year period. If you read the article carefully, you will see that you are out after two years or when the withdrawal agreement comes into effect, so there is the possibility of a post-dated cheque.

In my view, the noble Lord, Lord Triesman, is exactly right. Flexibility in negotiation is extremely important. Giving yourself deadlines is crazy, as is surrounding yourself with red lines. The reading of Article 50 by the noble Lord, Lord Hain, is, in my humble view, completely correct. However, the big point in this debate is not that; it is the question of who takes back control. Who decides? Is it the Executive or the legislature? So the point raised by the noble Lord, Lord Tyler, is extremely important.

I end by saying that I warmly welcome what the noble Lord, Lord True, said about the Good Friday agreement and the Belfast treaty of 1998, and in particular what he said about Prime Minister Major. To someone like me who was an observer at the time, it is completely correct. I remember when the leader of the Opposition, Mr Blair, went to Washington when I was the ambassador there. He was asked about Northern Ireland and what he would do if he became Prime Minister. His reply at my dinner table to assorted Senators and the Vice-President was that he would try to do exactly what John Major had tried to do and he would be very pleased if he could do it half as well. It is very good to hear that the solid voice of the Conservative Party is not that of the Patersons and Hannans but is in favour of retaining all the good work done by the Conservative Government and then by Mr Blair’s Government in that astonishing first year.

[Lord Hamilton of Epsom]

If the House of Commons voted by an overwhelming majority to move Article 50, surely that was done on the understanding that the negotiations would be completed in two years. If the date was to be changed, surely that would need a vote in the other place.

[Lord Elton (Con)]

Perhaps I may ask a question for elucidation—I may have missed something. The noble Lord, Lord Adonis, and others have spoken as though Parliament is not to be consulted by the Minister making the order. However, paragraph 10 of Schedule 7 states:

“A statutory instrument containing regulations under section 14(4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament”.


It may not be sufficient scrutiny, but there is scrutiny—Parliament is not being completely bypassed.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Forsyth of Drumlean]

I think I was behaving exactly like the noble Lord, Lord Foulkes. I was using the procedures of the House to make an argument against what I thought at the time was a very bad Bill—and which only this week has meant that people like me are now the highest taxpayers in the United Kingdom, as we predicted would happen. If I may say so to the noble and learned Lord, his point is completely irrelevant to the amendment before us.

The noble Lord, Lord Foulkes, talks about tensions being created in Edinburgh between this Parliament and the Scottish Parliament. There will always be tensions between this United Kingdom Parliament and the Scottish Parliament, as long as it is run by people who wish to destroy the United Kingdom. That is what they are about: using their powers to break the United Kingdom. The notion that we should move in a direction and get ourselves into a position where we need lots of legislative consent Motions simply provides more opportunities for everything to be turned into a constitutional crisis, which is the nature of the SNP. We will come to that later in our consideration of the Bill.

[Lord Hamilton of Epsom (Con)]

Does my noble friend think that the noble Lord, Lord Foulkes, was briefed by the Scottish National Party before he tabled this amendment?

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Wallace of Saltaire]

I apologise for being perhaps a little stronger than I should have been in this respect. On the engine room—I wanted to return to the noble Earl, Lord Howe, on this—much of the business of multilateral organisations, be it NATO or the EU, is done in working groups and committees. The common foreign and security policy structure has some 40 working groups and committees, including a military committee that has been chaired by a British officer. If we are not in any of those working groups, we will miss out on formulating policy.

There are other details that matter a great deal. I remember the noble Earl, Lord Howe, saying on one occasion, when some of us were following the noble Lord, Lord West, and asking, “Where are you going to find the frigates to make up the carrier groups that we need?” The noble Earl said, if I remember correctly, “They do not necessarily have to be British frigates”. I took him as meaning that they might be Dutch, French, Belgian or whatever. Well, that also needs a certain structure, with certain training mechanisms and certain multilateral commands.

[Lord Hamilton of Epsom (Con)]

Would the structure not be NATO?

[Lord Wallace of Saltaire]

The noble Lord may not know, but, as I have quoted, we have been involved in some 15 EU operations, some of which have been naval. Had he visited Operation Atalanta at Northwood, he would have known that that is an entirely naval operation, commanded by the British with ships from a number of different nations. Operation Sophia in the Mediterranean has also involved British frigates working with others on the whole question of migration. So some operations are NATO, some are the EU.

I have said quite enough. Of course I am going to withdraw, but we, along with many others, do not know enough about this area to be able to give the confidence to the Government that we want—that is the whole problem with this “mechanical Bill”. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Hogan-Howe]

The noble Baroness is in a far better position than I am to talk about the law, so I am not sure that I am able to say that. We have an extradition treaty with America and many other countries where that type of arrangement is not in place, so I would need to understand why the American model and that of other countries works without the arrangement mentioned by the noble Baroness, and why it has to be in place in Europe. There may be a reason, but I am not aware of it.

[Lord Hamilton of Epsom]

My Lords, before my noble friend the Minister winds up this debate, I would like to address the problem of him being constantly accused of not spelling out the Government’s position. We are mid-negotiations. Surely, if you are negotiating with the EU, it is very difficult to reveal your negotiating position. Our experience of dealing with the EU is that when we start to reveal our negotiating position, it immediately laughs at us and tells us that it is absolutely ridiculous for us to think that we are going to get these concessions, and that we are cherry-picking and want to have our cake and eat it and all this sort of thing. It seems to me that the Government are in a very difficult position. They have to hold this debate because we are processing the Bill through Parliament, but simultaneously we are trying to negotiate with the EU. We cannot reveal our position. The overall position is that nothing is agreed until everything is agreed.

[Lord Lamont of Lerwick]

I totally agree with what my noble friend is saying. It is very important that that point is made: it is not made often enough and could be made every time on every amendment. Does he agree that the most absurd question of all, which we have had several times on previous amendments, is for the Government to be asked what their fallback position is? How on earth can someone in a negotiation say what their fallback position is?

[Lord Hamilton of Epsom]

My noble friend is absolutely right. Of course, the EU is watching all this extremely closely because it is desperate to try to snarl up the whole process so that we cannot leave. The fact that a referendum involving a democratic vote was held on this is regarded by most people in the Commission as a sign of weakness. I think it was President Macron who said the other day that if a referendum were held on whether France should pull out of the EU, the leavers would win, but of course he was not going to allow a referendum. I am sure that that will go down in history along with other French expressions such as “Let them eat cake”.

[Lord Adonis]

My Lords, I have six amendments in this group. They refer to the United Kingdom having continued access after withdrawal to passenger name records, to the Schengen Information System, to the European arrest warrant, to membership of Europol, to the European Criminal Records Information System, and to the fingerprint and DNA exchange with the EU under the Prüm Council decisions.

The questions put to the Minister by the noble Lord, Lord Thomas, went to the heart of the matter—that is, given that the Prime Minister said in her Munich speech that she wishes to see a treaty replace all these elements of the existing arrangements, the Minister should simply tell us the process by which we will be negotiating the treaty. This debate, as with many others, gives the complete lie to the ridiculous assertion that no deal is better than a bad deal. Let us be clear: if there is no deal on 29 March next year, the current arrangements to which the noble Lord, Lord Inglewood, referred, painstakingly negotiated over many years, for the European arrest warrant and the very high levels of engagement between the member states of the European Union—which the noble Lord, Lord Hogan-Howe, said were so important to his work as Commissioner of the Metropolitan Police—all fall.

Is the Minister going to tell us that the security of this country will be as safe as it is now if all those arrangements fall? I assume that he is not, in which case the United Kingdom leaving the European Union with no deal at the end of March next year would be a complete abdication of the national interest. We need to get that firmly established. As we have more of these debates and see the precise benefits of the EU—which, after all, are the reason we went into the European Union—it becomes clearer and clearer that leaving with no deal would be a dereliction of the national interest.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Bilimoria]

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

[Lord Hamilton of Epsom (Con)]

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

[Lord Bilimoria]

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

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

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Liddle]

The noble Lord, Lord Forsyth, is clearly saying that he thinks there is a real possibility we are going to crash out of the EU. We have heard that from him on other occasions and from people who agree with him. David Davis wrote to Conservative MPs to say that it was a possibility that we would not pay up the money unless we got a good free trade agreement. The fact is that any deal is better than no deal: no deal would be an absolute disaster for this country. But if there is a serious risk of no deal from Members of the governing party—I am sure the Government do not want that but there is pressure in that quarter—I believe we would be right in this Bill to guarantee the rights of EU citizens living in this country.

[Lord Hamilton of Epsom (Con)]

The noble Lord said that we seem to be able to crash out and to have no deal as a bargaining chip. Surely, we either crash out or we have no deal as a bargaining chip—we cannot have both.

[Lord Liddle]

The point I am focusing on is that this is our opportunity to guarantee the rights of EU citizens in the event of there being no deal.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Whitty (Lab)]

My Lords, I shall make a brief broader point. For all the reasons we heard from the noble Baroness, Lady Randerson, and the noble Lord, Lord Bilimoria, I strongly support the objectives of these amendments. So, apparently, does the Prime Minister, judging from her speech last week. Is the reality not that it is also in the interests of all the airlines, the aerospace industry and the airfreight industry across the whole of Europe to retain the present situation? Was that not obvious from day one of Brexit discussions? Why did the Government’s negotiating strategy not recognise that this was one deal which we could have done very quickly and very clearly which would not have interfered with any of the rest of the negotiations and one which almost the rest of Europe would have greatly welcomed? There would have been no cries of “kein Rosinenpickerei”—“no cherry-picking” —from Europe on this one. A bit of common sense at the beginning of these negotiations would have parked aviation. We would have agreed aviation.

[Lord Hamilton of Epsom (Con)]

Was it not the EU that said that nothing was agreed until everything was agreed?

[Lord Whitty]

It was both the EU and Mr Davis and they were both wrong because in all negotiations whenever you enter negotiations you agree some things and you then park them. We could have agreed this. It is ridiculous that airlines are now faced with selling tickets in three weeks’ time not knowing whether they can deliver on them. I just make that more general point because the Minister keeps saying it is all down to the negotiations, but the negotiations went wrong from day one, and this is one example where we could have delivered something, albeit it would need to be part of a total package at the end of the day.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Newby (LD)]

My Lords, your Lordships’ House has just passed an amendment to the Bill that gives Parliament a meaningful vote on any Brexit deal. This amendment, standing in my name and those of the noble Lords, Lord Butler and Lord Wigley, and the noble Viscount, Lord Hailsham, is about what happens next. It says the Government must put forward the option of a referendum on the deal, a people’s vote to determine whether the people as a whole approve the outcome of the negotiations or seek to remain within the EU. It would not require a referendum to be held in all circumstances but only if Parliament—the Commons in particular—voted for one. In what circumstances might the Commons choose to do this? I think it might well choose to do so if it had rejected the deal that the Government had negotiated, and that is a perfectly plausible outcome.

I have had the privilege of listening to almost all the 16 days on the Bill—some 120 hours of debate—and the dubious pleasure of hearing virtually every word uttered by Ministers during the process. Whether we have discussed clinical trials, family law, environmental protection, police co-ordination or international security, the position of the Government has been virtually identical: they wish us to have arrangements as close as possible to those that currently obtain, to the extent of being prepared to submit to the rulings of the hated European Court of Justice in respect of key regulatory bodies, while accepting that we will not have the benefits nor the influence that we enjoy today. In area after area, they accept that we will be powerless rule-takers. The alleged sunny uplands of being in a more favourable position in any of these areas have, to put it mildly, been shrouded in fog. On the key issue of the customs union, vital to the future of Northern Ireland and our trade more generally, and faced with the brick wall of hard reality, the Government’s response is simply that of petulant defiance.

If the Government reach an agreement based on their current negotiating stance, I believe that it will be obvious that it leaves the country poorer, less influential and less secure—as the Prime Minister predicted it would before the referendum. A large majority of MPs and members of your Lordships’ House know this, but may yet vote for it. Why? Because the 2016 referendum vote has become sacrosanct, and the expressed will of the people two years ago holds people under its spell. It is as if it has frozen attitudes in a way alien to the democratic principle, which allows people to change their minds.

There is only one way in which this spell can be broken; there is only one way in which MPs can be liberated to vote for what they know is in the country’s best interest and in line with their beliefs; and that is giving the people the final say. The spell cast by the previous referendum is so powerful because it reflects the political reality that a vote in the Commons to reject a Brexit deal could not be the end of the matter. In those circumstances, the country would demand a final say.

As the noble Lord, Lord Hamilton, put it at Second Reading, such a vote would mean that he had,

“no option but to take to the streets”,—[Official Report, 20/2/17; col. 144.]

because he could not get representation in Parliament. I suspect that he is not alone in that view. To save him from a potential criminal record and in order to give the people, who started the Brexit process, the chance to determine how it should be concluded, a vote on the deal should then be held.

[Lord Hamilton of Epsom (Con)]

As the noble Lord mentioned my name, the Liberals were very reluctant to accept the result of the first referendum, so why will they accept the result of the second one if it goes against what their interests are?

[Lord Newby]

My Lords, the first referendum was a mandate to the Government to negotiate Brexit. At the end of the process, a decision has to be taken on whether that mandate has been adequately fulfilled. The only question is whether the Commons alone or the Commons supported by the people should take that final decision.

--- Later in debate ---

[Lord Hamilton of Epsom]

Does the noble Lord think that dissatisfaction with the EU has grown greater since the stance it has taken on the negotiations?

[Lord Howarth of Newport]

There is a great deal of national grumpiness, and when the British people get grumpy, they are a force to be reckoned with. The dispossessed rejected the status quo and were unimpressed by Project Fear, and my advice to my noble friends is to stop digging.

The false simplifications, the distortions and the mendacities on both sides in the referendum campaign were a degradation of our politics. I believe that the nation’s heart would sink at the thought of another bout of all of that. The second referendum would inevitably intensify the divisions and the bitterness of the first one. There would, I fear, be ugly episodes. The losers would demand a third referendum, whatever the noble Lords, Lord Newby and Lord Wigley, say.

We are not immune in this country to the neo-fascism that has so deeply, disturbingly possessed swathes of central and eastern Europe. We are fortunate that the most sinister figure to present himself as a leader of the far right in this country was Nigel Farage. If we were to have a second referendum, I greatly fear that a far more charismatic and sinister leader might emerge on the far right.

In any case, referendums are alien to our constitution, and the issues that would fall to be decided at a referendum, if and when the people were asked to judge the terms of the deal the Government had negotiated, would be immensely complex technical issues about trade, financial services, immigration, security, environmental protection and so forth. These complex issues should be determined by indirect democracy, by the intricate processes of parliamentary government, not by the crude instrument of a plebiscite.

I am always a little unsure of myself when I find myself disagreeing with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I have huge respect for his judgment. He calls for one last referendum. But the Constitutional Committee of your Lordships’ House advised us that referendums should occur only rarely, but were appropriate when a major constitutional issue needed to be decided. That is what happened in 2016. There was a referendum on the great constitutional issue of whether we should leave the European Union and reclaim the sovereignty that we had lent to it. That great constitutional issue has been decided. Strictly, of course, as noble Lords have mentioned, in legal terms that particular referendum was advisory, but politically it was binding.

Noble Lords may recollect this document. The Government sent it to every household in the country. It was sent to 27 million households and cost £9.3 million of taxpayers’ money. In it the Government said:

“The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union … This is your decision. The government will implement what you decide”.


We have to live with the results of our democratic choices. If Parliament and the Government were to renege on the commitment made by the Government in that document, I believe there would be a very serious crisis in our country.

Great political turning points in the national life are inevitably uncomfortable for the establishment. The political genius of the British establishment has hitherto been to accommodate itself, however reluctantly, to big, uncomfortable changes: Catholic emancipation, the Great Reform Act 1832, repeal of the Corn Laws, death duties, reform of the House of Lords in 1911, the welfare state and the loss of empire. The latest such challenge is leaving the European Union. Your Lordships’ House and the people who take the big decisions in government and public administration on behalf of the people should now be similarly prudent, constructive and magnanimous. We should not waste our energy in seeking to overthrow the democratic decision of the British people to leave a European Union that is discredited in the eyes of the majority and perceived as failing because of mass youth unemployment, deep inequalities and its undemocratic nature.

It is for the left to rediscover the generous patriotism of JB Priestley and George Orwell. Agitating for a second referendum is displacement activity. The real challenge is to revive the centre left and to get beyond the intellectual and political bankruptcy of social democracy in the period since 2008 and the global financial crisis. But if all the centre can now offer, 10 years after that moment, is to remain in Europe, voters will say, “These politicians don’t understand us, they don’t respect us and they have nothing useful to offer us”, and they will move to the extremes. If the respectable politicians do not engage with voters on these matters of the deepest possible concern then disreputable politicians will take our place. I heard a former Commissioner of the European Union on the “Today” programme criticise his former colleagues, saying that those in Brussels tend to live in something of a bubble. I hope that will not be said of your Lordships’ House.

--- Later in debate ---

I have one last point, which I think is important. If Germany said that it wished to withdraw from the EU and the UK was one of the 27, it is very hard to imagine the UK providing the kind of easy exit it seeks for itself as those roles are reversed. I have in mind, as I think everyone does, the whole issue of Ireland—nothing to do with this amendment, perhaps, but a bellwether. Unless and until we know precisely what the Government’s view is about Northern Ireland, then for many people, not least those on the island of Ireland in the north and in the Republic, there will be precisely that uncertainty that has rightly been criticised in the debates already today. For these reasons, I have no doubt whatever that this amendment should command the support of your Lordships.

[Lord Hamilton of Epsom]

I was not really intending to get involved in this debate. However, the noble Lord, Lord Campbell of Pittenweem, has gone on about the canard that we do not know what the Government want out of the negotiations. He then explained to us what the Government want out of the negotiations: as easy a deal as possible. It is quite straightforward what the Government want. They want a free trade deal. They want to go on doing business with the EU in the way that they have in the past, with as little change as possible.

I hear your Lordships say, “But we’re not going to get that”. That is probably true, but that is because the EU is not prepared to give us that. It is prepared to suffer when it comes to its trade in goods—as it sells so much more to us—for the benefit of punishing this country, because for some reason the EU is such a wonderful organisation that you have to punish people who want to leave it. We voluntarily joined the EU; why can we not be allowed to leave it voluntarily without being punished? That does not say much for it, does it? This is one of the problems that the Remain campaign had during the referendum: what was the narrative that was so wonderful about staying in the EU? The fact that no narrative could be produced was one of the reasons why the Leave campaign won.

So let us not mandate the Government to doing x or y, as the amendment suggests. It is quite clear what the Government want. They want a bespoke free trade deal that carries on business as we have done in the past. It does not look as if we will get it but that is what the Government want, and mandating it will not make the slightest bit of difference.

[Lord Lea of Crondall (Lab)]

My Lords, I am very glad to follow the noble Lord, Lord Hamilton of Epsom. He spoke in rather a different tone from the previous speakers, my noble friend Lord Monks, the noble Baroness, Lady Wheatcroft, and the noble Lord, Lord Campbell, who have brought to this discussion what I might call a mature, thoughtful approach to a crisis facing this country that will become even more stark when we get to October.

A lot of people have mentioned today the relationship between the Lords and the Commons. I draw the House’s attention to a creative opportunity that we have right now in the light of the report published on 13 March by the Brexit Select Committee of the House of Commons, chaired by Hilary Benn MP. By a majority in some cases but unanimously in others, it has produced something pretty much like the sort of remit that I imagine will make sense in terms of the detail that one would present to Mr Barnier, who has his own remit. Perhaps I may pick out one or two points from it to give the flavour.

The noble Lord, Lord Hamilton, says it is obvious, and everyone knows, what the Government want. I think that, on a scale of one to 10, we know about only two or three out of 10 what is in the negotiating mandate. If we were to make a constructive contribution then, first, there would have to be something in the mandate because otherwise on what criteria would anyone, including ourselves, judge the outcome of the negotiations? I return to the analogy that my noble friend Lord Monks drew with trade union negotiations. The two things are analogous in some ways, though not totally. What you do not do is go into cloud-cuckoo-land at the start and say to the employer—on an industry basis or a company basis; it does not matter at the moment—“Here is our claim: double the pay, double the holidays, halve the hours and double the pensions”. There are two reasons why mature trade unions do not go down that route. First, you will not get what you have asked for, and what do you do when you come back to the executive? Does it call a strike? That would be a fantasy and it would not get anywhere. The second reason, of course, is that that trade union would not be taken seriously on the other side of the table. I know some trade unions can be satirised in that way, but then I suppose I could satirise Boris Johnson quite adequately if I put my mind to it.

With regard to the degree of specificity that is needed in a mandate at the moment, I shall read one or two of the proposals in the report of the House of Commons Select Committee. If the House of Commons is to be part of looking at a mandate, it does not matter who writes it down. The Government have yet to respond, by the way, to the report, which picks up a couple of points made by the noble Lord, Lord Campbell. I shall read just one or two:

“The border between the Republic of Ireland and Northern Ireland must remain open, with no physical infrastructure or any related checks and controls, as agreed in the Phase 1 Withdrawal Agreement”.


That is very difficult to implement, and things follow from it to do with the customs arrangement and the single market. If we are to get somewhere between cloud-cuckoo-land and the specificities, I must say to the noble Lord, Lord Hamilton, that there is no button to press that says, “Take back control. Job done”. This has taken two years of an educational exercise—we are in the middle of a huge educational exercise. Whether or not people argue in the pub about it—and some people do—the fact is that it is a very complicated matter, and it is now understood a lot more than it was at the time of the referendum. Let us try to see how people could understand it a bit better. Surely it would be good if there could be more transparency from the Government. I am sure they would get more respect in Brussels, Paris, Berlin and the rest if they could be franker than they have been so far—although we know the reasons why they cannot easily be franker at the moment and why Parliament needs to give them a nudge.

To give another example, on crime and terrorism, the report says that,

“arrangements must replicate what currently exists in operational and practical cross-border co-operation. In particular, the UK must retain involvement with Europol and the European Arrest Warrant and continue to participate in the EU’s information-sharing systems including SIS II”.

It goes on:

“Institutional and decision-making frameworks must be identified to ensure that the UK is able fully to participate in foreign and security co-operation with the EU, to meet the challenges it shares with its neighbours in the EU-27”.


Another example is:

“In respect of trade in goods, there must be no tariffs on trade between the UK and the EU 27”.


There are a dozen such propositions that would be highly desirable in an adult democracy, which has been a democracy for 1,000 years, or whatever it is. Surely that is the minimum that we can expect: a little more transparency, please. Then people would know that they were being treated as adults and take it from there. We have a huge problem with the credibility of where we are all headed in the continued mention of October this year. I am not saying that the idea that we can get to this place by October is impossible, but it stretches one’s imagination to see how all this will be done. A mark of our seriousness could be to make a proposition.

It is not a risk-free exercise for anyone, whatever their views, to put up a comprehensive proposition. The only way we can describe the arrangements from which we have to select is that they are all different trade-offs, or different package deals. Some people have seen a paper that a trade association produced on the different trade-offs on offer. The maximum at what you might call the remain end of the market would be something that does not look very different from where we are. Another, mentioned by my noble friend and increasingly the position of many industries, is to stay within the European Economic Area by moving from pillar 1, which is the EU, to pillar 2, which is EFTA, of which we were a member from sometime in the 1960s to sometime in the 1970s—a long time ago. It is an organisation that, on trade, works. No one doubts its position in the world. We must look at these practical alternatives. If we were to adopt the amendment, the House of Commons would find it a very constructive way forward to reach some accommodation, not only between the Lords and the Commons, which is a consideration, but between the Government and the people, as mentioned many times today. The amendment will provide constructive input, if the House will support it today.

--- Later in debate ---

Offering reassurances on the Irish border and good intentions to finalise the detail of our future trade relationship are warm words, but having those warm words in some unspecified agreement after we have left the EU is liable to leave us in a very dangerous limbo indeed. In those circumstances, I believe Parliament would be justified in saying no and asking the Government to go back to the negotiating table—not to conduct negotiations and not even necessarily to set the direction of negotiations, but to go back to the table rather than fall off the cliff with no deal.

[Lord Hamilton of Epsom]

What evidence does the noble Lord have that you get a better deal when you go back to the table than the deal you have already got?

[Lord Reid of Cardowan]

The noble Lord may be able to predict whether it will be better or worse, but any deal that is acceptable to the British Parliament would be better than the disastrous situation of no deal at all. But that may need time. Why have an artificial deadline cutting us off from the conclusion of a deal, which may be there in the bones or, in the famous words of the Brexit Secretary, as a “platform”—and deny ourselves the opportunity of having the alternative of a cohesive deal rather than no deal, which I think would be the worst of all worlds? This is an opportunity that we should take.

A lot of the debate on Amendment 49 was about the ideological motives of those who are handling this. As my noble friend and occasional protagonist Lord Grocott keeps pointing out, I was a reluctant remainer. I was sceptical about the eurozone and the bureaucracy and unaccountability of the European Union, but on balance I wanted to stay in because all the challenges that we face are global: cyber, terrorism, trade and the environment. Being part of a larger bloc is, on balance, worth it. Therefore, my approach to this is pragmatic, not ideological. I admit to being confused by the ideological positions of the leaders of the major parties. We appear to have the leader of one party who is ideologically inclined to remain in the European Union but doing her best to get us out of it, and a leader of the other party who is ideologically inclined to remove us from the European Union who appears to be doing his best to keep us in part of it. I am confused about the ideologies that are supposed to be driving this on all sides of the House.

I believe that we should take what the noble Lord, Lord Cormack, called a common-sense position. It is possible that the vote on the final deal could be little more than a deal or no deal choice, where a rejection of the Government’s Motion would mean the UK exiting the EU with no deal on WTO terms, which would be the worst possible option for the UK. That is not according to me, in my lack of wisdom, experience, depth and analysis, but according to the Government’s own impact studies. I believe that we must insure against that, which is what Amendment 62 seeks to do.

The Secretary of State told the House of Commons that the agreement will deliver the “exact same benefits” as our EU membership. That is basically what the noble Lord, Lord Hamilton, said our objectives were. As it happens, that is also the commitment of the Opposition Front Bench, which has adopted it as one of its six tests. Amendment 62 simply safeguards this commitment by guaranteeing that we keep our current benefits until a withdrawal agreement has been reached that can match our objectives. As the noble Lord, Lord Cormack, said, it is a common sense, pragmatic amendment. It has no political motivation and no ulterior motive, other than the objective of preserving the best for this country. That is what this whole debate is supposed to be about.

It is my great pleasure to support Amendment 62. I am grateful to the noble Lord, Lord Cormack, for indicating that, if time constraints prevent us pushing this to a vote later tonight, we may come back to it at another stage.

--- Later in debate ---

[Lord Hamilton of Epsom]

Is the negotiation with the EU not somewhat unique, because you are negotiating with 27 different countries?

[Lord Deben]

It is unusual to negotiate with 27 different countries, but I have negotiated with large numbers of different people on the other side. That is one thing that we just have to accept. It is, like anything else, a negotiation. If we think that it is so unique that we cannot do it, we should not have started the negotiation in the first place. It does not make any difference if you have a second negotiation: it is the same position that you had with the first negotiation. The fact that it is with 27 different countries makes no difference because it does not change from the first negotiation to the second. I do not think that my noble friend has a point on that.

The real issue is the fundamental fact: the amendment does not operate unless Parliament has voted in a particular way. The Government’s answer to the amendment must therefore be that they have a reason not to let Parliament continue to be involved after such a vote. The Government do not think that Parliament will take such a decision. They are very sure—and I have listened to government speakers again and again—that they will produce a result that will be cheered by Parliament. We will all be thrilled with what they have been able to achieve. I would be very suspicious if the Government’s answer is that they do not think they will get that sort of result and therefore do not want to get themselves into a difficult position. I am assuming that, whatever agreement they have, it will be a good one and this amendment will never come into operation.

The only reason for the amendment is to be a backstop for the circumstances in which the Government do not achieve what they tell us they can achieve and they therefore produce something that is so unacceptable that Parliament decides that it cannot accept it. The Government have to say, “What happens then?”. Unless they accept the amendment or some technically different one that suits them, their only answer can be, “We the Executive will decide”. That is why this is not about the European Union. It is about the powers of Parliament and it is why I am surprised at my noble friend Lord Hamilton, who was chairman of the 1922 Committee, who protected and defended the rights of Members of Parliament and who believes and believed in the nature of Parliamentary democracy. It is why I do not understand why this divides the House.

This should be something that both leavers and remainers—and those who wander between and those who are confused—all of us, should accept that we want Parliament to be in a position to accept and to decide. This will not work unless Parliament has decided that it does not want the agreed solution. The amendment will not come into operation unless that happens. Surely it is not too much to ask that the Government say, if we get to that point, that Parliament should have the right to ask the Government to go back and try again.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Elton]

My Lords, in moving the Motion that we are now discussing, the noble Lord, Lord Adonis, made one assertion which cannot go without comment. I had intended to ask him—I now ask your Lordships—to recognise that, whereas an elected House would be stronger against a weak Government, an elected and paid House would be weaker against a strong Government. I do not think that the noble Lord was here, because I think that it was in 1953, when the terrorism Bill was passed by this House. The ping-pong stage lasted from 2.30 pm on a Thursday till 7.31 pm on a Friday without interruption. I doubt whether the Whips of any Government with any majority in the House of Commons and a paid House here would fail to drive through such legislation. There would be no such resistance.

I raise that now merely because it will be a big issue later on. Let us not swallow the fiction that an elected and paid House is a stronger protection against an overmighty Government.

[Lord Hamilton of Epsom (Con)]

My Lords, I am grateful to the noble Lord, Lord Adonis, for this opportunity to say what I want to say now: those whom the gods would destroy they first make mad. Through the progress of this Bill in Committee and on Report, noble Lords collectively have taken leave of their senses and, in doing so, have put the whole future of your Lordships’ House as an appointed Chamber at stake.

When the coalition Government decided that they wanted to reform your Lordships’ House, I became a humble foot soldier supporting my noble friend Lord Cormack in his campaign to preserve an appointed House. We emphasised at that point that our job was to revise and improve legislation, but never to challenge the supremacy of the elected Chamber. I am not sure that we have kept to that. We seem to have had a very large number of amendments—much reference has been made to the 15 amendments made by your Lordships’ House. Many of them strike me as having been quite outside the scope of the Bill.

I went to see the Clerk of the Parliaments when I was withdrawing my amendment, which talked about preparing for no deal if we wanted a good deal, because I thought it completely irrelevant to the Bill. The Clerk of the Parliaments assured me that everything was completely in order and the amendments were quite acceptable; indeed, he said that they would have been totally acceptable in the other place as well. I then talked to a right honourable friend of mine in the other place who has watched the progress of the Bill in the House of Commons. He said that Conservative rebels had tried to table an amendment basically mandating us to remain in a customs union. This was judged in the House of Commons to be outside the scope of the Long Title and ruled out of order. Now my noble friend Lord Framlingham, who has experience of being a Deputy Speaker in the other place, tells me that many of the amendments that we have passed here would never be allowed in the other place.

This raises a serious question: are we as an appointed House going to have greater powers to put down amendments than the democratically elected House down the way? How comfortable are we in that position, when we have no democratic legitimacy whatever?

My right honourable friend Dominic Grieve at least has constituents whom he must go to and he may even stand at the next general election, but I do not have to remind the House that we have no constituents and probably will not stand at any general election ever again. The rebels in your Lordships’ House are therefore in a completely different position from those in the other place.

I have to say that support for our appointed House is drifting away. We are losing friends and gaining no new ones. One might reckon that my honourable friend Jacob Rees-Mogg would support an appointed House. Even he gave the warning the other day that we were playing with fire, so I do not think that we can rely on his support either.

When we beat off attempts during the coalition Government to reform your Lordships’ House, the person who really came to our aid was one Jesse Norman. We owe him a great debt of gratitude that we exist in an appointed House today. Jesse Norman was very courageous and sacrificed several years of his ministerial career as a result of taking such a courageous stand. He is now a Minister and I am glad that he is there, so we cannot count on him to rally right-wing Tory MPs and to save us next time round.

I am afraid that we have done enormous damage to our reputation in the country generally. Everybody says, “Oh, there’s nothing to worry about”. I have been in this House for 12 years now. I have never known a petition going down asking for the abolition of your Lordships’ House, but my noble friend Lord Robathan yesterday told me that the number of names on it was 163,000 and rising. We are being rather complacent if we think that we can carry on in this extraordinarily arrogant way telling people of this country who voted to leave the EU that they got it all wrong and that somehow we must come out with a solution that keeps us half in the EU and deny the people the vote they have made.

[Lord Cormack]

My Lords, I feel provoked to respond, because my noble friend Lord Hamilton of Epsom was kind enough to refer to the Campaign for an Effective Second Chamber, of which he was indeed a valued member and which my noble friend Lord Norton and I founded some 16 years ago. However, after that, I part company with my noble friend. He has read it completely wrong. By implication, he criticises the Clerk of the Parliaments and the advice given to your Lordships on tabling amendments. But what do Members do? They take advice and according to the procedures of this House, advice is given. I speak as one who was a Chairman of Committees for 15 years in the other place. It is not precisely the same advice as would be given in another House but we have behaved entirely according to the rules. One of the fundamental precepts of, and our whole purpose in, the Campaign for an Effective Second Chamber—the members of this group are drawn from all parts of your Lordships’ House, including a number of prominent Members on the Liberal Democrat Benches—is to fight for an effective second Chamber while always acknowledging the primacy of the other place.