European Union (Notification of Withdrawal) Bill

Lord Hannay of Chiswick Excerpts

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

[Lord Howard of Lympne]

There are many occasions when this House can bring forward new arguments and a fresh perspective on a situation, and genuinely make the other place think again. I do not believe that this is one of them. The question we must ask ourselves today is: how can we best help the EU nationals resident in this country? The best way is to bring the uncertainty of their position to an end as quickly as possible and the best way to do that is to pass the Bill and activate Article 50 as quickly as possible.

[Lord Hannay of Chiswick (CB)]

My Lords, on the issue of new facts, does the noble Lord agree that one new fact is the communication from all the expatriate groups across the European Union that they wish the House to pass this amendment because they believe it is the best way to secure their position?

[Lord Howard of Lympne]

I am sure many of those groups made their views known when the matter was debated in the other place. Though of course their views need to be taken into account, I do not see that as tantamount to a new fact.

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[Lord Bragg]

I thank the noble Countess. I have a short speech—about as third as long as the previous speech—and I have nearly finished it. I was wondering why the Prime Minister did not lead the remain campaign after we had become a minority. Why did she not fight on, as so many other minorities have successfully done, to achieve what they honourably and passionately think is best, as we all do, for this country? It is outside the democratic development of our history that a single-issue vote should be allowed to change the course of that history for ever so dramatically and, in my view, so potentially disastrously.

Finally, one major aspect of the disaster is to turn our backs on those who have come here and given their talents and skills to the United Kingdom, settling here and transforming us in so many ways for the better. They are now reduced to pawns in a government strategy which, to many observers here and abroad, seems largely clueless and without any response, save bluster, to any critical questions. The answer to the question of foreign nationals, for our own national pride in who we are, is to tell those who are here now that we want them to stay here and be welcome.

[Lord Hannay of Chiswick]

My Lords—

[The Archbishop of York]

My Lords—

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[The Archbishop of York]

I never want to see any human person used as a bargaining chip. They are made in God’s likeness and as far as I am concerned, they are people and must be treated according to the rule of law in this country. The Prime Minister tried to give a guarantee. Angela Merkel did not want it before Article 50 was triggered. My suggestion is to trigger it and go back to what you promised.

I may be a Primate, but thank God I am not in captivity. The other Primate is definitely in captivity, because he is unwell and his legs have just had an operation—but I am not. I suggest that the sooner this becomes law, the greater the challenge we can give the Prime Minister on what she attempted to do but was prevented from doing because Article 50 had not been triggered. As soon as it is triggered and the power is given, we shall shout as loudly as we can and campaign as much as we can for her to go back to what she originally suggested.

People such as me were shocked, after being here and having to travel round on a travel document and pay huge sums for visas to visit the rest of Europe, to suddenly discover that when naturalised—that is the word that is used—as a British citizen we could suddenly visit the whole of Europe without a visa. That was great stuff, and I applaud it—but, please, this is a very limited Bill and we should pass it as it is.

I have one more suggestion for our Minister: to set up a truth and listening commission in every one of our four nations, so that the divisions which we are seeing at the moment can be healed and to listen to the truth and to what the people of Britain and Northern Ireland are looking for, rather than simply locking it in the Government. For those reasons I will vote against any of the amendments, as I do not think they are revising or improving the legislation. They are simply adding on and adding on.

[Lord Hannay of Chiswick]

My Lords, I support Amendment 9B, which is in my name as well as those of the other three noble Lords. It is about the rights of EU citizens in this member state, of course, not those in other member states. I support the amendment without hesitation because I believe we have a commitment to honour here, to recognise not just the rights of these citizens—although that is important enough—but the contribution they have made, are still making and will, I hope, continue to make to our economy and our society. The amendment does not seek to dictate to the Government the details of how these rights should be secured. That will be for the Government to sort out in the proposals that are called for in the amendment, and for Parliament then to decide. I would say here to the most reverend Primate that nor does it entail any delay in the triggering of Article 50 beyond the Government’s deadline at the end of this month.

So far as I can see, there is in fact only one faintly respectable argument against the amendment, which is that to speak unilaterally now about how we will treat European citizens here is not the right way for the UK to help the position of its own citizens who are living in other European countries. But that argument simply does not hold water. Otherwise, why on earth would British citizens right across the European Union have today issued a statement making it quite clear that they support our taking the decision in the amendment and believe that it is the best way to secure their rights?

I do not think I could be accused of supporting the cause of those fellow citizens right across Europe in a half-hearted way. I moved an amendment in the House which would have given them the right to vote in the referendum—which, quite shockingly, they were deprived of by the majority who voted against that. My own view is that for us to move unilaterally to protect the rights of EU citizens here is in fact the best possible step towards safeguarding the rights of our own citizens elsewhere in the EU.

I say that as someone with a little experience of EU negotiation. I negotiated our accession to the treaty, in a very modest way, as well as the budget rebate, the establishment of the single market and the opt-out on the euro. Of course, I cannot be sure that I am right, but I do think that there is a reasonable chance that I am right—and I do not believe that the transactional approach, which is the way that the Government wish to go, is the right way to proceed or is likely to produce good results—or will produce them quickly. So I hope that your Lordships’ House will approve this amendment when we come to vote on it.

[Lord Wigley (PC)]

My Lords, I support Amendment 9B, which overlaps with other amendments, including Amendment 37 in my name. There is a moral case—a human rights case—which has already been very well made and which I therefore will not repeat. I want to pinpoint four different categories of employment in which this issue is particularly acute. I do so from my own experience in Wales, but it is equally relevant throughout the United Kingdom.

The first group that I highlight are workers in the tourism sector, particularly those in the hotels and catering trades. In Wales, we benefit from having hundreds of workers from EU member states, such as the Baltic states, Slovakia and Hungary. It can be argued that most of these jobs could be done by residents in Wales—they could, of course, but the reality is that the work in this sector is not particularly popular, partly because some jobs are highly seasonal and partly because the wage levels are sometimes low. In Wales we now have a low unemployment rate of 4.4%, which is below the UK average. It is no exaggeration to say that if these employees were to depart overnight, the sector in Wales would be in crisis. Employers need to know now that their current staff will be able to remain and, indeed, to have some indication of the circumstances after Brexit or during any prolonged Brexit negotiations under which they will be entitled to employ staff from other EU countries.

Secondly, there is the food processing industry. Many of the same arguments apply—in some cases, to an even greater extent, because firms often overdepend on EU workers. Thirdly, in a different category, is our university sector in Wales and throughout the UK. In Wales, we have 1,355 EU nationals employed at present, often in key jobs where they cannot be easily replaced. Fourth is the NHS in Wales where, as in England, there is a high level of dependency on staff who have come here from other EU countries. I believe that more than 1,100 such EU employees work for the NHS in Wales at present. Without these, the service would be in real danger of collapse. More than 6% of our doctors are from EU countries, and we already have a critical shortage of GPs. Regarding this fourth group, I have been told of key jobholders, fearful of what may happen to them after Brexit, who are already actively seeking jobs in their home countries in case at some later stage there is a stampede of their fellow EU nationals seeking to return home, and getting a job there consequently becomes that much more challenging.

The Government have been taking the line that they will give priority to the position of EU workers in the UK when the negotiations start, but it is not at that point that the necessary assurances can be given to these workers. If the issue is subsumed as part of the overall negotiation package, the outcome will not be known until the negotiations are nearly complete. That would be totally unacceptable not only to thousands of such workers living in Britain but, I believe, to this House and the other place. That is why this amendment must be written into the Bill and why MPs must be asked to think again on this critical matter. If they do not, I believe that we should have the courage of our convictions next week, or whenever, to insist that this provision be enacted. Thousands of people are looking today to this House to give a lead, and I earnestly hope that we do not let them down.

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[Lord Spicer]

I personally agree totally with anything that increases the sovereignty of Parliament. I only make the point that this is totally unnecessary, because if we got on with this Bill, we would end up having a much more sovereign Parliament than we would have without it. That is the whole purpose of what I am saying. Indeed, it is necessary that we should have greater sovereignty because the powers of Parliament have been eroded ever since the Maastricht treaty, with which I was associated. That has been something that has been going on for some time—ever since there was a single currency. The powers of Parliaments have been reduced because the single currency is irrevocable, and we have a system in this country whereby no Parliament can bind another Parliament. There is no doubt in my mind, at least, that had we not started the process of leaving the European Union, the European court, which the noble Lord will know a lot about, would have moved in on us for not joining the single currency at some point. There is no question in my mind about that.

[Lord Hannay of Chiswick]

I am not sure what is in the noble Lord’s mind. If he just tries reading the treaty, he will see that there is no basis for proceeding against the Government of the United Kingdom for not being a member of the euro. It is actually written in the treaty that we do not have to be, so perhaps he will clear his mind.

[Lord Spicer]

I am also sure that the European court would have found a way into this at some point. I have no doubt about that at all. If one really is concerned with the sovereignty of Parliament, we should get on with passing this Bill as quickly as possible and begin the task of unwinding the historic process of eroding the powers of Parliaments, including our own. We should not take too much notice of the amendments coming up: most of them are irrelevant to the Bill.

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[Lord Howard of Lympne]

I think that I have already answered that question. I quite accept, as I said to the noble Lord, that it is proper for Parliament to ratify an agreement that has been reached—or, indeed, reject it. That is what Parliament’s role should be. That is in accordance with what the Prime Minister has said. What I am objecting to is subsection (4) of the proposed new clause, which could have the effect that I have identified and would lead to an extremely unsatisfactory and unconstitutional position.

[Lord Hannay of Chiswick]

Has the noble Lord given proper consideration to a circumstance in which the Prime Minister and the Government wish to throw in the towel in the negotiation? It cannot possibly be ruled out because, as I understand it, his right honourable friend the Minister responsible for Brexit has just told the Cabinet that it might well happen. So why on earth is it wrong to put in the Bill that Parliament should have the right to say yes or no to such a decision?

[Lord Howard of Lympne]

Well, for all the reasons that I have given. I do not want to repeat my speech to the noble Lord. The effect of the proposed new clause, the effect of giving Parliament the ability to say, “You cannot bring the negotiations to an end”—not just once, but twice or three times, or four times or any number of times; that is all in the proposed new clause—is to intrude Parliament into the negotiating process. It is wrong, it is improper and it should not be in the Bill.

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[Lord Hope of Craighead (CB)]

My Lords, perhaps I can make my position clear. I think that we have four different attempts to find a solution to a problem that we are all looking for. For me, it would be neater if I made my points on Amendment 17, before others introduce their solutions. I am very much in sympathy with most of what appears in Amendment 17, but I share quite a lot of the difficulties that the noble Lord, Lord Howard, expressed, although perhaps not exactly for the same reasons. I will explain myself a little more.

At Second Reading, I made the point that there was a respectable argument that only Parliament has the constitutional authority to authorise the act of concluding an agreement with the EU or the act of withdrawal, if that is what the Government seek to do. For that reason, I respectfully suggest that it is in the Government’s best interests, for their own protection, to look for a form of words that will provide them with the answer to any possible challenge that might be made along lines that would impede progress towards a final agreement. It was with that view that I was searching for some kind of solution to the problem. I said at Second Reading that I would not seek to put forward an amendment myself and that it was more for the Government to try to find a way of doing it, which it is perhaps still open to them to do.

I will explain my views on proposed new subsections (1) to (3). As the noble Lord, Lord Pannick, has explained, the Government have given an undertaking. David Jones said in the House of Commons:

“First of all, we intend that the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union. Furthermore, I can confirm that the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded”.—[Official Report, Commons, 7/2/17; col. 264.]


There are three elements in that undertaking, all of which find their place in subsections (1) to (3) in the proposed new clause. However, I have to say that I have a quarrel with the wording. Clause 1 of the Bill, as I mentioned at Second Reading, is beautifully crafted in the simplest possible language. I am troubled by the fact that, if you cast the undertaking in the framework that you find in Clause 1, you can produce that undertaking in four lines instead of 16. Just from the point of view of the aesthetics of drafting, I would have thought that it would be proper to try to use the undertaking as a basis for an amendment. The amendment would be very simple: another four- line amendment, which would fit neatly into the character of the Bill. It would provide the Government with the protection that I suggest they need and would produce the answer to the point made by the noble Lord, Lord Pannick, with which I entirely agree, about the sovereignty of Parliament. I believe that the sovereignty of Parliament is absolutely paramount in reaching an agreement.

I do not want to elaborate on this point because I agree with everything that the noble Lord, Lord Pannick, said, apart from the wording, which I suggest might be more attractively put. As he might recognise, I am adopting a tactic that advocates adopt in court: if you are addressing a judge, trying to find a way of formulating your proposition, and the judge comes out with some form of words that is not exactly in accordance with it but is in accordance with what you are driving at, it is quite a good tactic to pick up his words, as it is more likely that he will accept your answer. I am just adopting that tactic, as we have this there on a plate before us. You draw together the two things: the language of the undertaking and the interest that the Government have in getting the thing in the Bill for their own purposes. The undertaking that the Minister gave in the House of Commons was not given lightly. We can all understand that it would have been carefully worded and approved by somebody a good deal higher up the line of government than the Minister who was giving it. It really is a gift to adopt those words and get it into the Bill in that language.

I respectfully suggest that it would be wiser to detach subsection (4) from subsections (1) to (3), because we can grapple with subsections (1) to (3) for the reasons that I have given, but subsection (4) raises problems. I do not want to go over all the ground but, through a simple reading of the wording, you can see immediately the difficulty that it runs into. First, it tries to combine two different situations, in that it talks about “the termination” or termination “unilaterally”. I presume that when it talks about termination the first time, this is where both sides are unable to reach an agreement and there is a complete breakdown between both sides. If that is the situation, I, for the moment, cannot understand what can be done. There is no point in coming to the Government and asking for it to be approved, because you cannot get back to the negotiation table. It is a Humpty-Dumpty situation: Humpty-Dumpty has fallen off the wall and you cannot put the bits together again. So I cannot understand that part of the amendment.

The second part talks about terminating unilaterally. Although I can understand what that situation might be, the problem is that subsection (4) requires the Government to come to both Houses for prior approval before they can do that. You can imagine a situation where the Houses say, “We are not satisfied, go back and have another go”, and then we have the neverendum situation that has been referred to—going round and round in a circle with no way out.

[Lord Hannay of Chiswick]

I am most grateful to the noble and learned Lord for giving way. I was following with great interest his ratiocination until he got to the point about neverendums. As the noble Lord, Lord Kerr, has made clear, there cannot be a neverendum, because the two-year guillotine comes down. The only way to get beyond the two-year guillotine—and this answers the point that the noble Lord, Lord Faulks, made—is by the agreement of all 27 member states and the United Kingdom. If the United Kingdom refuses a prolongation of the two-year period, then it cannot be prolonged. So can we please drop the references to neverendums and just address whatever problems the noble learned Lord has with the wording of subsection (4)?

[Lord Hope of Craighead]

I entirely understand the point that the noble Lord is making, but the trouble with subsection (4) is that it does not mention the two-year period—we do not know what period we are talking about. That is one of the problems with it. It does not think through to the factual situation that would arise in the situation that is being addressed.

I do not at all underestimate the importance of finding a solution to the point that this subsection seeks to address; I am in sympathy with it. I just say that it is not suitably worded and it should be rethought. It is for that reason that I suggest that we should not try to struggle to put the two things together. We should separate out subsections (1) to (3) and adopt my solution, which I need not repeat, as to how they might be simplified and made more attractive and then think again about subsection (4). We can find a way to address exactly the particular situation that it seeks—of separating out the unilateral termination from the bilateral situation—and then try to find ways of meeting that. I do not need to elaborate, but these are the points that I wish to make in broad sympathy with what Amendment 17 is seeking to achieve.

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[Lord True]

I thank the noble Lord, Lord Tyler. So it was the other way around—358 to 256—which strengthens my argument. There is—if those 358 care to unite again and again—an insurmountable wall in your Lordships’ House, an unelected House, against the will of the other place, Her Majesty’s Government. I will not use the phrase “the will of the people”—we are acting on the instructions of the people, but I know it offends some. There is an insurmountable wall. It is inconceivable that the Government could form enough people in this place to overcome it. So when I read these amendments, which, effectively, have said that nothing can proceed and nothing can be terminated without the consent of your Lordships’ House, I see them as effectively giving your Lordships’ House—an unelected House, with a force that the world out there sees today—a veto on the procedure to take this forward. I give way to the noble Lord—

[Lord Hannay of Chiswick]

I am grateful to the noble Lord. I wonder whether he has had a word with the Prime Minister, who basically coined this approach. She put in the Lancaster House speech a statement that both Houses should have their say. She then replicated it in the White Paper. So, rather than addressing people like myself and the noble Lords, Lord Kerr and Lord Pannick, about this, could he perhaps have a word with his right honourable friend?

[Lord True]

It may be that the noble Lord has more access to my right honourable friend than I do. My right honourable friend is perfectly capable of forming a judgment and I have no doubt we will hear from my noble friend on the Front Bench. I do not resile for a moment from the advice that I am giving. I would give that advice to my right honourable friend as well. But it would be a strange place to put this country, at this time, on this Bill, at this stage of these proceedings, if we pass legislation that effectively gives a veto to a House that has voted with 358 Members against the request of the Front Bench to allow this Bill to proceed unamended as the House of Commons did. This is a major issue that needs to be addressed and it is one to which I hope the country and this Parliament will turn its mind.