European Union (Withdrawal) Bill

Lord Howarth of Newport Excerpts

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

[Lord Bilimoria (CB)]

My Lords, as an answer to what the noble Lord, Lord Howard, has just said, the noble Viscount, Lord Hailsham, said in moving the amendment that this was all about “Take it or leave it”. Is “Take it or leave it” a meaningful vote? Throughout Committee, the main answer given by the Government was, “We are implementing and executing the will of the people”, while every single day the press says, “Implement the will of those 17.4 million people”. But, as the noble Viscount said, “Leave, whatever the terms”—is that what the people actually said? Is that what is in the national interest?

At the heart of this issue is the fact that in the other place at the time of the referendum two-thirds of MPs, on all estimates, thought that the best thing for this country would be to remain, and right here in this House about 75% thought the same. Yet when the referendum took place, hundreds of those MPs’ constituencies voted to leave, so the MPs are caught in a trap. The confusion is whether they see themselves as delegates or representatives of their constituencies. Are they making these decisions in the best interests of their constituents and country or of their party? Are they managers or leaders? The difference between a manager and a leader is that a manager does things right but a leader does the right thing. Do they have the guts—the guts of the so-called mutineers such as Nicky Morgan, Ken Clarke, Dominic Grieve, Jonathan Djanogly and Tom Tugendhat, and I could go on—to stand up when the time comes to do the right thing?

We discovered in Committee that whether we were discussing borders, education or movement of people, no argument was made. The Government were like a stuck record, simply saying: “The will of the people”. The amendment would give MPs in the other place and this House the power to stand up to do the right thing for the country. The noble Lord, Lord Howard, talked about a constitutional crisis. What constitution do we have where a Government bully Parliament and say, “Take it or leave it”? It is Parliament that should be supreme, in the best interests of the people and the country. Thanks to this amendment, Parliament would have the ability to stop the train crash that is Brexit.

[Lord Howarth of Newport (Lab)]

My Lords, the noble Lord, Lord Howard of Lympne, is absolutely right to draw our attention to the constitutional dangers that lurk within the amendment. It goes too far to bind the Government.

I think it is time that we drew breath. We have had a very exciting couple of weeks but it is time to think about the respective roles of the Executive and Parliament and of the House of Commons and the House of Lords, as other noble Lords who have spoken have done. Parliament is not the Government and it should not try to usurp their role. Of course the Government emanate from Parliament and are accountable to it, the Government should be advised by Parliament and are invigilated and sustained by it, and if they lose the confidence of Parliament then they fall, but the Government are not the same as Parliament and Parliament is not the same as the Government. We have a separation of powers. The Government are the Executive, and Parliament neither can nor should act as the Executive.

It was improper and inept for the Government ever to suppose that they could bypass Parliament in dealing with Brexit. Of course there must be a meaningful vote, but it is for the Government to negotiate, listening all the time to Parliament—Parliament constantly proffers its advice—and then eventually to submit the deal that they have negotiated to Parliament for its approval or otherwise. You can call it a take-it-or-leave-it vote, but nobody could say that that is not a meaningful vote.

Dominic Grieve, someone for whom I have the greatest respect and the warmest regard, justified his amendment to Clause 9, requiring that the final terms of the deal should be approved by a statute, on the basis that it was essential to prevent the Government exercising the biggest Henry VIII power ever. That was an understandable and legitimate motive, but to require that the deal should be approved by the laborious process of statute seems to me to go too far in an inappropriate direction. Parliament cannot negotiate. Parliament certainly cannot negotiate by legislation or amendment. It cannot change the deal, it cannot bind the European Union. It can bind the Government in an excessively narrow straitjacket, and that would be an extraordinarily unhelpful thing to do in the national interest. The process of legislating such a statute would serve only to prolong the uncertainty about which everyone complains.

Amendment 49 would develop the Grieve amendment and take it further. It repeats the requirement for a statute already in Clause 9, but doubles up with the requirement for a resolution. It then goes further. Proposed new subsection (5) states that if the House of Commons does not approve the draft terms, the Government “must follow any direction” given by the House of Commons. That seems to me the most extraordinary provision. Of course, legislation routinely binds Governments for the future, but it does not tie their negotiating hand. It should not, specifically, tie this Government’s hands as they seek to perform this particular complex, sensitive, immensely difficult, crucial set of negotiations.

The resolution could say anything. It could say, “Go back to the negotiating table”. It could stipulate that the Government deliver what is undeliverable. It could rescind Article 50. It could call for a general election or another referendum. These are exceedingly important matters where the Government should listen to Parliament, but the Government should lead and Parliament should respond.

If we reflect on the relationship between your Lordships’ House and the House of Commons and our respective responsibilities, surely it is our responsibility to advise the House of Commons, to advise the Government. In the words of the noble Viscount, Lord Hailsham, it is to suggest, to argue, to explain. It is no part of this House’s responsibility to seek to manipulate the House of Commons or the Government, to seek to choreograph future proceedings of the House of Commons, and certainly no part of our responsibility effectively to pull the rug from under the Government.

If we pass this amendment and some of the others on the Marshalled List today, I fear that we shall be getting too big for our constitutional boots, and many of our fellow countrymen feel the same.

[Lord Lamont of Lerwick (Con)]

My Lords, my noble friend Lord Hailsham made an eloquent and powerful speech. If I had closed my eyes, I might have thought I was listening to his father. However, despite his eloquence, he did not go very deeply into the detail of his amendment. I wish to support what the noble Lord, Lord Howarth, and my noble friend Lord Howard said.

The first part of the amendment, proposed new subsections (1) to (3), it might be argued, roughly and broadly mirror what the Government themselves have outlined: a resolution in the House of Commons, the withdrawal Bill, primary legislation and trying to get a vote before the European Parliament has voted. But my noble friend Lord Hailsham then inserts a series of triggers with rigid dates. If the vote of approval has not taken place by 30 November, if the Act of Parliament has not received Royal Assent by 31 January, and if the withdrawal agreement has not been agreed by 28 February, a whole lot of things happen. As the noble Lord, Lord Howarth, highlighted, what happens is that the House of Commons or Parliament effectively takes over negotiations and can impose conditions. This is a most extraordinary thing. It has never been the case before that Parliament has dictated how a Government should negotiate a treaty, but this is what would happen under the provisions of the amendment. As the noble Lord, Lord Howarth, said, Parliament could dictate all sorts of things: it might dictate that the Article 50 notice be withdrawn or it might dictate, although it would perhaps be subject to dispute, that Article 50 was extendable. This would be for Parliament to assume extraordinary powers in a way that has never happened before. It would be a major constitutional innovation.

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[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I abstained on the last vote because I thought that many of the arguments against that amendment were very powerful and it was, in many ways, a defective amendment. However, I strongly support this amendment. I have no such doubts. I support it even though I readily recognise that it is entirely possible—many people think, highly likely—that in a further referendum, the vote would again be in favour of leaving. This time, I suggest there is much to be said for making the next referendum, unlike the first, legally binding, with no question of “neverendums”.

Of course, the public have already voted, and certainly that vote—although not legally binding—made it imperative that we give an Article 50 notification. We have done that and continue to explore what terms for leaving the EU are available to us. The public cannot yet vote on those available terms, but why should they not eventually be allowed to do so? Surely not even the most fervent Brexiteer would argue that a further referendum would not present the public with an altogether clearer, and better informed, choice than last time. Why would that not be properly regarded as giving them a further choice and further respecting, rather than betraying, the earlier expression of the popular will?

I have struck out a great deal from what I was intending to say because much of it has already been said by others. However, I should deal with one further point. An argument, which I confess initially troubled me against a further referendum, is this: because the other 27 countries would prefer us to remain, as I think most people believe, if there is a further referendum, they will make the terms of leaving as unattractive as possible to maximise the chance of the public rejecting the deal on a further vote. So, it is said, a commitment to a further referendum would compromise our negotiating position. But I have concluded that, ultimately, that is a completely unreal objection.

In the first place, given that a further vote could very well still, as I say, be to leave, and that if, finally, we were to do so, then it is patently in the interests of all the EU states that we leave on mutually beneficial terms. I do not believe that the proposal of a further referendum would, in truth, worsen those terms. But put that thought aside. The plain fact is that, in any event, there is an obvious and powerful reason why the remaining 27 will not wish to allow us too favourable a deal—namely their concern to discourage from leaving any other state which is possibly inclined to exit the Union as we now propose.

One other point I will touch on is that made by my noble friend Lord Green of Deddington. I am not sure that the noble Lord, Lord Butler, quite appreciated it. What I think my noble friend Lord Green said is: how do we know that we will not, if we vote to remain, lose the rebate and our right not to be within euroland? The noble Lord, Lord Kerr, has made it plain—there is nobody better able to do this—that, in his view, a right to withdraw our notification must inevitably leave us in the same position as we started in. I support that view too. Again, given that the other 27 would want the vote to be to remain, I think that they would readily make that clear.

In short, the case for the public to have the final vote on this really most momentous of issues, perhaps in many of our lifetimes, now seems to be overwhelming and I urge your Lordships to support it.

[Lord Howarth of Newport]

My Lords, this amendment is reckless. It is peculiarly reckless proposed in an unelected House. It would be reckless if it were to be entertained by the elected House. The 2016 referendum generated bitter divisions in our country. To rub salt in those wounds and fan the flames of that anger by offering this option, raising hopes of a further referendum, seems to be most unwise. My noble friend Lord Adonis, in his Hitchcockian script, truly made my flesh creep.

The 2016 referendum exposed depths of mistrust and resentment against the political establishment and against what has broadly been the policy orthodoxy of recent decades. The appropriate response to that, surely—even if you deeply disagree with the view that was taken by the majority then, even if you consider that people were voting against their own best interests—is not to say, “You are stupid, bigoted and ignorant. You are wrong. You should think again and get it right”. That is how it will be perceived.

[Noble Lords]

No!

[Lord Howarth of Newport]

Yes, it will. Rather, we should seek to understand the nature of this public discontent and the depths of this anger and offer something better. I give way to my noble friend.

[Lord Winston (Lab)]

I am grateful to my noble friend for giving way. Would he not concede that the political resentment against political figures occurred before the referendum rather than afterwards?

[Lord Howarth of Newport]

Indeed it did, and what we saw in the vote at the referendum was an extremely disturbing expression of that. As I say, we should not fan those flames.

In any case, there is no sign that those who voted to leave have changed their minds. A recent ComRes poll, which took a rather larger sample than the occupants of the Electric Ballroom in Camden, found that 68% think that remainers should show respect for the majority for leave, and that we should get on with it and end the uncertainty. Instead of which, however, there is a proposal for a big campaign in support of a second referendum. That would be a bad use of time, energy and money.

I believe that the result would be the same because the European Union is unreformed. It remains in relative economic decline. It is undemocratic in its processes and it has completely failed to grip the problem of migration. There is deep popular discontent still with the EU. The only proposal for reform that is around is that of President Macron for deeper integration. In the unlikely event that that comes to pass, the UK would find itself even more marginalised.

[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.

[Lord Faulks (Con)]

My Lords, I will not go into the virtues of remaining in the European Union or leaving it, but simply concentrate on the amendment. I was one of the Minsters who had the privilege of taking the referendum Bill through your Lordships’ House. As many noble Lords will recall, there were debates about the extent of the franchise, among other matters, but there was no suggestion by any of the major parties of a threshold, let alone a second referendum. One can only imagine the response there would have been following the results if it had been the other way around and there was an attempt then to have a further referendum—surely what is sauce for the goose.

It must be remembered that the Bill went through Parliament when a general election was looming. Any party, or combination of parties, could have formed the next Government. Surely it was incumbent on each party to make clear that it would not honour the result of the referendum without a further vote or the option of one.

There are a number of uncertainties about the amendment. Can we revoke the notification of withdrawal under Article 50? I know that the noble Lord, Lord Kerr, says that we can, but, with the greatest respect to him—I really mean that—that is ultimately a matter that could be determined only by the European Court of Justice in Luxembourg. We cannot predict with any certainty what the outcome might be. Similarly, we do not know whether we would be able to seek an extension of the Article 50 period, which is also a necessary part of the amendment as provided by proposed new subsection (3), although I know the noble Lord, Lord Newby, has had some secret soundings. But the whole premise of the amendment is legal uncertainty—precisely the opposite of what the Bill is intended to achieve.

There is yet another unsatisfactory aspect to the amendment. If a further referendum were held, it would give two options: acceptance or revocation of the notification of withdrawal, which would lead to our remaining in the EU should there be agreement by all parties or—this is uncertain—the ECJ rules that we are entitled to revoke unilaterally, notwithstanding the objection of any or all of the other 27. But what about the option in the event of a referendum that we should leave the EU without a concluded agreement? This is the no deal scenario. I—and, I suspect, most of your Lordships’ House—would much prefer that we did not leave without a concluded agreement, but there must surely be an opportunity for those voting in this referendum, having been informed by the lengthy and highly publicised process of negotiations between the Government and the EU, to conclude that they do not wish to remain in the EU and nor do they want to accept the deal that has been concluded. The proposed referendum in the amendment precludes that option.

If Parliament now denies voters a chance to leave the EU, except on onerous terms imposed by a combination of parliamentary fetters and/or unreasonable conduct from the EU, surely we should not deny the people the chance to leave without a deal. That would be treating people with contempt, and would be inconsistent with the EU referendum Act passed by both Houses of Parliament and what was or was not said by all the parties when the Bill went through Parliament. I do not need to elaborate on how divisive a further referendum would be—the first one was quite divisive enough.

Finally, is it not time that the Labour Party made clear what its approach to a second referendum is? If it thinks that voters should have an opportunity to think again, should it not say so rather than hover waiting for some political advantage?

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[Baroness Wheatcroft]

My Lords, Parliament needs to know what the Government are trying to achieve in their negotiations. The original vision of having the benefits of EU membership without any of the perceived downsides has evaporated. For the second time this afternoon, I shall quote Sir John Major, for I can put it no better than he did. He said that,

“every one of the Brexit promises is—to quote Henry Fielding—‘a very wholesome and comfortable doctrine to which (there is) but one objection: namely, that it is not true’”.

If “cake and eat it” is off the menu, what is it that the Government are aiming to achieve in our future relationship with the EU? This amendment seeks to give Parliament some say in what the future relationship would look like before it is too late.

We will no doubt be told that it is foolish to try to tie the hands of the Government in their negotiations—but the noble Lord, Lord Monks, has more experience than most of conducting negotiations, and he convincingly introduced this amendment. My experience comes from the other side of the negotiating table, but it leads to the same conclusion: being able to say “my members” or “my board” or “my Parliament” would never accept such and such strengthens rather than weakens the hand of the negotiators. It would surely help the Government to have some idea of where the red lines are as far as Parliament and the House of Commons, in particular, are concerned.

This afternoon the Minister once more made very clear that the Government would like to deprive Parliament of a meaningful vote on whatever deal or no deal they negotiate. This House has demonstrated its objection to that, and I believe that the Commons will uphold that vote. Our system of democracy demands that Parliament should take back control of the Brexit process. Insisting on a meaningful vote is progress. This amendment goes one step further. It endeavours to give Parliament an input into the shape of the deal. We are led to believe that there are differing views within the Cabinet on whether the UK should have a customs partnership with the EU. But if there is a majority of MPs who insist on a customs partnership, would it not make sense for the Government to be aware of that while there was still a chance of negotiating it? If a majority of MPs believe that the country needs to be in the equivalent of the single market of the 27, would it not be sensible to establish that sooner rather than later? It sometimes seems that the only mandate in which the Government have an interest is that granted by the Daily Mail. Parliament surely should be granted as much say in the Brexit process as the tabloid press. This amendment would give Parliament the power to strengthen the hand of the Government in their negotiations with the EU and I urge the House to support it.

[Lord Howarth of Newport]

My Lords, is it not quite clear that what the Government have to seek to do is restore self-government with a minimum of economic dislocation? I do not see any point in Parliament denying the Government freedom of manoeuvre as they seek to achieve that.

[Lord Campbell of Pittenweem (LD)]

My Lords, it is often said that imitation is the most sincere form of flattery, but I rather think, after our proceedings today, that repetition would not achieve the same objective. I have the advantage of following, yet again, the succinct appreciation of these issues by the noble Lord, Lord Monks, and wish to add only a few thoughts of my own. I will make a contemporary reference. The resignation of Amber Rudd from the Cabinet has not just had consequences for the Home Office but is generally regarded as having had very severe consequences for the balance of opinion within the Cabinet, which leads me to a point that has already been made by the noble Baroness. The requirement to state the terms of mandate might once and for all force the Cabinet to clearly indicate precisely what they are seeking to achieve. A mandate based on principles would not tie the hands of the Government. It would not put handcuffs on the Prime Minister or even, for that matter, Mr Davis. It would set out in a clear and unequivocal way precisely what the objectives were. That, as the noble Baroness has already indicated, would create an opportunity, emboldened by authority. It therefore cannot be argued on behalf of the Government that the passing of this amendment would in any way detract from their ability to carry out an effective negotiation.

European Union (Withdrawal) Bill

Lord Howarth of Newport Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, I was very glad to add my name to the amendment and the others in this group. I am sure that I speak on behalf of many Members of your Lordships’ House in thanking the noble Lord, Lord Lisvane, for moving the amendment so concisely and convincingly.

I suggest that is it necessary that we pass the amendment. Whichever side of the Brexit argument one is on—the noble Lord, Lord Lisvane, has already touched on this point—one can still believe that it is of fundamental importance that the powers of Ministers should be contained in a sensible and democratic manner by Parliament. Ministers are answerable to Parliament for all that they do, and they should not be able capriciously to decide what is appropriate and what is not.

The word “appropriate” is itself extremely unsatisfactory. It may well be that no one in your Lordships’ House has any doubt about the way in which Ministers in the present Government would behave—that we can trust them implicitly to exercise judgment and discernment in all issues, just as my noble friend Lord Hailsham did when he was a Minister—and by Jove he needed containing from time to time, as he readily admits.

Seriously, this amendment places no real obstacle in the way of any self-respecting Minister. We were reminded in Committee that we are dealing with well over 100 individuals. It means that he or she will act with regard to what is necessary and not to a subjective analysis, as far as the Minister is concerned, of what is appropriate. If agreed by your Lordships’ House, the amendment will not in any way inhibit the overall desires of those who are passionate for Brexit. Nor will it particularly advance the cause of those, like me, who are very sceptical about the benefits of Brexit. What it will do is make every Minister—all 100-plus of them—if given the opportunity to make an executive decision, examine with precision and be able to justify that his or her decision is governed by that word, “necessary”. I hope that we will have a brief debate and a conclusive outcome—unless my noble friend rescinds his nodding of a few minutes ago and accepts, as he should, the impeccable logic of the amendment.

[Lord Howarth of Newport (Lab)]

My Lords, as the noble Lord, Lord Lisvane, suggested in his admirable speech, taking back control should not be a licence for the Executive to arrogate to themselves new arbitrary powers, and Parliament should not permit them to do so. It is entirely appropriate that your Lordships’ House offers this advice to the other place. No self-respecting MP would think otherwise. I very much hope that the other place will agree with us.

[Lord Skelmersdale (Con)]

My Lords, I have never been a self-respecting MP, nor am I ever likely to be one. The amendment would leave us in total limbo. The noble Lord, Lord Lisvane, in introducing it, made reference to the phrase:

“A Minister of the Crown may by regulations make”.


He needs, in this amendment, to change the emphasis on the reason for which he does it. Unfortunately, the amendment would leave out the role of the Minister of the Crown. It is Ministers the Crown who make regulations. They always have and presumably always will. Therefore, who will make these regulations under whatever auspices? How is this supposed to work and improve the Bill?

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[Lord Howarth of Newport]

My noble friend is making a powerful speech but will she deal with the important issue of judicial review that has been raised during the debate. We have to attend to that. Will she also give her view on the merits of Amendment 41A in the name of her namesake, the noble Baroness, Lady Jones of Moulsecoomb?

European Union (Withdrawal) Bill

Lord Howarth of Newport Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am a remainer, but I am one despite—not because of—the charter. To leave the EU but nevertheless retain the charter as part of our domestic law would be the worst of all possible worlds, the very opposite of Panglossian.

Before explaining why I oppose Amendment 15 so strongly, let me acknowledge that getting rid of the charter represents an exception to the broad principle that the Government have stated as the central objective of this Bill: ensuring that our laws will be the same on the day after Brexit as on the day before. I accept that, in certain limited respects, the charter confers rights not available under either the European convention—to which we remain and intend to remain party—or our own, ever-dynamic, common law on human rights. Perhaps the best—certainly the most often cited—example of this is the Watson case, to which the Secretary of State for Exiting the European Union, David Davis, lent his name at one point. The case held that one part of the Data Retention and Investigatory Powers Act 2014 breached a particular charter privacy provision, which was found to go further than Article 8 of the convention. That has now been corrected in the Data Protection Bill, which is currently before the other place and will shortly come back to us on ping-pong. It is to that Bill, not the charter, that we will henceforth look in terms of data rights protection. Watson points up another aspect of the charter: although it applies only to the implementation of EU law—a real problem that I will have to come back to—where it applies it goes wider than the convention because it requires the courts here to strike down and disapply our primary legislation. I regard that as a minus, not a plus; it is a flaw, rather than a virtue, in the charter and it is of course inconsistent with the Human Rights Act approach.

Besides being a remainer, I am also a strong believer in parliamentary sovereignty and the supremacy of Parliament. Twenty years ago, when the Human Rights Act was enacted, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg—who I am happy to see in his place today—incorporated, very wisely and skilfully, the rights accorded by the convention into our law on the explicit basis that if our legislation is shown to be inconsistent with a convention right, the courts can and will declare so. They can make a declaration of incompatibility, leaving it to Parliament to adjust the position as it thinks right and proper. However, our courts cannot strike down primary legislation. That constitutional arrangement was carefully decided on; indeed, it has helped to keep our judges out of the firing line and out of conflict with Parliament. It is unlike the position in the United States where, as noble Lords know, Supreme Court Justices are highly politicised figures. Here, Parliament remains sovereign—but not in those rare cases where the charter applies.

The other case, besides Watson, that best illustrates this point is the Benkharbouche case, which has been mentioned once or twice in our debates and was decided by the Supreme Court here just 18 months ago. I shall briefly summarise. Two north African nationals, one of whom has given his name, Benkharbouche, to the case, following their dismissal from employment by two north African embassies here in London, brought claims against those states in the employment tribunal. Some of those claims were based on our domestic law—unfair dismissal, non-payment of wages, refusal of holiday pay—but others, particularly under the working time directive, were based on EU law.

On the face of it, all claims, domestic and EU, were barred by the State Immunity Act 1978—primary legislation—which denied claimants the right to sue embassies in this country. Barring access to a court is, unsurprisingly, a breach of the right to justice and therefore a breach of the European Convention on Human Rights at Article 6 and of the charter at Article 47. The result of the case, which I suggest was deeply unsatisfactory, was that the EU claims succeeded—the State Immunity Act was disapplied in their case—but the major domestic law claims of unfair dismissal and so forth failed because the court, under the Human Rights Act, declared simply that the State Immunity Act was incompatible with the convention.

This curious and regrettable anomaly in our law and its effect on the position of the judges has attracted very little attention because until recently the charter itself has been little noticed in litigation in this country. When, in a brief intervention in Committee on 26 February at col. 544, I put this problem to the noble and learned Lord, Lord Goldsmith, he suggested that the charter could be appropriately amended after this Act by delegated legislation. Opinions vary on whether that is possible but, either way, does it really make sense, given that we are now leaving the EU—regrettably, as I have indicated I feel—to carry over into our own law an instrument designed specifically for use only in the EU context, which, on occasions, requires our judges to disapply our legislation?

Thus far, I have focused on just the constitutional incongruity of the charter given the Human Rights Act, but there are other very powerful objections to our domesticating the charter. I will briefly touch on two real objections. I hope others hereafter will expand on these. One is the striking vagueness of the charter’s many articles. Some of course provide for real rights and those almost entirely and substantially overlap and mirror the convention rights that we have anyway, but much of the charter is merely aspirational—statements of broad principle. Indeed, Article 52(5) of the charter makes the distinction between principles and rights, and limits the legal effect of the principles—not that that distinction is by any means clear. Many legal commentators have described it as entirely confusing. For example, the so-called rights of the elderly are given as an example of a principle as opposed to a right. The noble Lord, Lord Pannick, suggests that certainty and clarity would be advanced by his amendment. I respectfully suggest, on the contrary, that they would be very far from advanced. This would be wonderful for the lawyers, but frankly, for few others.

The other central objection is that the charter, as I indicated, can only ever be used when “implementing EU law”. That in itself is a notoriously uncertain concept. The boundary between what is domestic law and what is the implementation of EU law is one that we are now sensibly intent on simply sweeping away. In response to another intervention of mine in Committee, at col. 549, the noble Lord, Lord Pannick, suggested that the charter would continue to apply just to EU law, which he identifies as all the law which is to be retained under this Bill. What if that law comes to be amended by Parliament or by secondary legislation, as some of it surely will? For example, if we were to consolidate all employment law provision so that in future Benkharbouche-type cases all claims would fall under a new UK statute. I suggest that it would be nothing short of absurd to perpetuate the distinction between EU law and domestic law, a distinction that will recede ever further into history, simply to continue to provide an area of law in which the charter would operate.

In short, I agree with everything that the noble and learned Lord, Lord Goldsmith, had to say back in 2009 when seeking to keep the charter out of the Lisbon treaty. But at least then the charter had the merit of constraining the exercise of legislative power by EU institutions, which were not subject to the constraints of the European convention. At least, too, we were then a member state and our citizens were citizens of the Union. What folly it would now be, as we leave the Union, quite unnecessarily to incorporate the charter as part of domestic law. I urge your Lordships to reject the amendment.

[Lord Howarth of Newport (Lab)]

My Lords, two main arguments have been put forward today and in Committee for writing the Charter of Fundamental Rights into our law. One is that we must bring the charter across into our domestic law because it would be anomalous not to do so; it would be inconsistent with the Government’s purpose in this Bill of transposing the whole body of EU law that presently binds us. It would be offensive for me to pray in aid Ralph Waldo Emerson’s dictum,

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen”,


and peculiarly inappropriate when the noble Lord, Lord Pannick, is the most ardent advocate that consistency should be our guiding principle here, supported by his distinguished co-signatories. Nevertheless, consistency is a poor justification for incorporating the charter. Schematic approaches will not serve us well in these impassioned and volatile political times.

I recognise the compelling practical reasons for transferring existing EU law into our domestic law, so that we are not sucked into a legal void at the moment we cease to be a member of the EU. However, it does not seem a necessary or desirable consistency to include in that transfer a charter which does not have value as the fountain-head of human rights and whose title, the Charter of Fundamental Rights of the European Union, portentously symbolises the very jurisdiction that the people of this country have voted to reject and which will be a diminishing element of our law as they are progressively released from it through their Parliament’s future legislative work.

The other main justification offered is that we need to hold on to hard-won and precarious human rights. That is a good motive, which I share, but it does not follow that we should transpose the charter. People who want to do so say that our constitution has saddled us with an elective dictatorship, that Parliament cannot be trusted in these days of political extremes, and that the charter should be valued as a foundational document in a developing written constitution. It is suggested that we need more checks and balances, not so much against the Executive as against Parliament itself. Happily, for those of this cast of mind, the judges are available. They, it is hoped, will imbue our polity with a higher wisdom than that of the people’s elected representatives, disapply statute when Parliament gets it wrong and rescue us from ourselves and our tendency to excess.

Have we, as parliamentarians, entirely lost confidence in the institution that we have the honour to serve and of which our country was once so proud? As we debate Brexit it sometimes appears that for many remainers almost anything is preferable to resuming full responsibility for our own decisions in our own parliamentary democracy. “Yes”, they say, through gritted teeth, “of course we respect the vote of the people on 23 June 2016, but actually it would be safer to stay in a protectionist customs union and a single European market in whose governance our elected representatives will have no say, and with Parliament trammelled by unelected judges constrained to follow the developing practice of the European Court of Justice”. If parliamentarians do not trust Parliament, why should the people do so, and then what happens to our democracy? I say gently to my noble and learned friend Lord Goldsmith that this is not about ideologically driven hatred of the European Union, as he suggests in today’s Guardian, but about commitment to the renewal of parliamentary democracy.

European Union (Withdrawal) Bill

Lord Howarth of Newport Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

As regards trade with non-members, Turkey is obliged to harmonise its commercial policy with that of the EU, and to grant tariff-free access to goods from any country with which the EU has negotiated a free trade agreement, without having had any say or representation in the negotiations. Nor does that mean that Turkey gets tariff-free access into the result of the negotiations with the new agreements that the EU has signed; that does not follow either. Given where we are, I do not think that the model put forward by the noble Lord, Lord Kerr, is at all satisfactory. I do not think the Turks regard it as satisfactory either. As I understand it, Turks have compared Turkey’s agreement with the EU to what is called the capitulation of the Ottoman Empire. That means the provisions under which western traders entering Turkey were given exemption from prosecution, taxation, conscription and the searching of their homes. The Turks do not regard this as an entirely satisfactory arrangement, and nor should we. It is not right for us either.

[Lord Howarth of Newport (Lab)]

My Lords, I listened to the noble Lords, Lord Kerr and Lord Patten, with much interest and even pleasure. They are virtuosi—but as I sometimes find when I listen to virtuosi, they are not entirely convincing. Amendment 4 is simply too vague for us to send it to the other place. If those who tabled it insist that the Government should seek to negotiate membership of a customs union, it behoves them to be specific about the features of the customs union that they believe would be appropriate in the interests of our country.

Let us be clear that we all want continuing free movement of goods between this country and the European Union. That is not in contention; it is a major objective of the Government in their negotiations. Those who support the amendment, which refers to “a customs union”, not to the existing customs union, should explain how the alternative customs union that they envisage would differ from the existing customs union.

For example, how would it differ with regard to the common external tariff, which the noble Lord, Lord Lamont, has just mentioned? At what level do those who tabled the amendment think the CET should be pitched? A common external tariff is protectionist, and as such is bad for the efficiency and productivity of our industries. It puts up the prices of goods imported from outside the European Union into the United Kingdom, to the disadvantage of our consumers and our producers: 21% of household incomes in this country are, on average, spent on food, clothing and footwear. Indeed, a higher percentage is spent by less well-off households. The existing customs union puts high tariffs on these essentials: 26% on food, 11.8% on clothing and 11.4% on footwear, on average. Also objectionable about the common external tariff is the fact that, as a barrier to imports from developing countries, it impairs their economic development. The European Union’s average external tariff is 5.1%. That is high compared with the USA’s external tariff of 3.5%. Noble Lords insist that the Government should state their precise objectives in negotiation. Will they state theirs? What should the common external tariff be? Do they envisage a customs union without a common external tariff? That would be very good, but is it in the realm of possibility? Is it not, in fact, better to seek to negotiate a free trade agreement?

If the new customs union to be negotiated differs from the existing customs union, how would it solve the problem of the border between Northern Ireland and the Republic? Noble Lords should explain that. How would the two sets of rules of the new customs union and the existing customs union of the EU interact? What dispute resolution mechanism do they intend?

Do they think that the European Union would accept a radically liberalised form of customs union with the United Kingdom and allow us such enhanced freedoms? It would be lovely, but it seems unlikely. However, unless they do and can say how their alternative customs union would work, we have to conclude that the amendment is tabled simply for tactical reasons, a device, as the noble Lord, Lord Wigley, candidly acknowledged, to enable the House of Commons to have a debate and vote on a customs union. Actually, what they clearly want is for us to stay in the existing customs union.

If we send an amendment to the other place, it will be amendable. Amendments to a vague amendment could go anywhere. Some noble Lords—I certainly exonerate my noble friends on the Opposition Front Bench—entertain the hope that a cross-party combination of remainers could force the Government to commit to staying permanently in the existing customs union, with all the disadvantages that the noble Lord, Lord Lamont, and others have described, including our inability to strike free trade agreements with other countries. As the noble Lord, Lord Lamont, reminded us, a customs union is in practice inextricable from a single market and from compliance with a whole mass of European Union rules on which we would have no say. I fail to see how that is reconcilable with our democratic values.

Only today in the Times it is reported that there is just such a manoeuvre of Members of Parliament to form a cross-party alliance and to force this issue. Noble Lords who support this amendment should come clean and say what the game is. It is not appropriate that we should write into statute vague amendments and tactical devices.

[Lord Bilimoria (CB)]

My Lords, the noble Lords, Lord Howarth and Lord Lamont, have given the other side of the argument to what the noble Lords, Lord Patten and Lord Kerr, have proposed. Of course, the European Union is not perfect; of course, with the customs union, there will be disadvantages and advantages, but the bottom line is this: whether free trade between the UK and the EU is 50% or whether it is declining and is now approaching 40%, it is still by far the biggest element of our trade. To have duty-free free movement within that customs union is a huge advantage—that is point number one, before you look at anything outside the European Union.

Then there is this whole talk about going global. What a lot of nonsense. We have always been a global trading nation; we have always been an open economy, an open market, and respected for it, which is why we are a recipient of among the highest levels of inward investment in the world. On the point made by the noble Lord, Lord Patten, about this taking time, the Canadian free trade deal, CETA, took eight years; it is also, to my knowledge, thousands of pages’ long. It is nowhere near as good as the free trade agreement that we have at the moment with the European Union. Our other 53 agreements representing almost 20% of our trade beyond the European Union are good but nowhere near as good as that with the European Union. We cannot just substitute them. The noble Lord, Lord Patten, gave as just one example the South Korean deal, where they say, “Don’t expect us just to roll over—65 million versus 500 million. No, it is a different deal altogether”.

CHOGM—the Commonwealth Heads of Government Meeting—is taking place here. I would love to do more business with the Commonwealth— 2.4 billion people; India has 1.25 billion people. What is our total trade with the Commonwealth at the moment? It is 9% of our trade—9% versus the 50% that we have with the European Union. Let us get real. We would love to do more with India—I am the founding chairman of the UK India Business Council. How many free trade deals does India have with any country in the world on a bilateral basis? It has nine, and not one with a western country. Here is the crux of it; I know this from the horse’s mouth—Prime Minister Narendra Modi is over here in the UK today. If you ask India what its priority is, an EU-India free trade agreement or a UK-India free trade agreement, you will be told that an EU-India agreement is much more important to India and it has been working on it for several years.

On the referendum and the point about the manifesto, when people voted to leave, they did not vote to leave on any basis. They did not vote, saying, “Please leave the customs union”. The red lines of leaving the single market and leaving the customs union were put down by the Prime Minister, not by the people who voted to leave: they did not say on what basis to leave. Our job as Parliament, what we are trying to do here, is damage limitation. This amendment is about damage limitation, because the best thing by far is to remain within the customs union—for our economy, for our businesses, for our citizens and for our country.

Brexit: Impact on Young People

Lord Howarth of Newport Excerpts

Monday 11th September 2017 Lords Chamber

[Baroness Anelay of St Johns]

The noble Baroness makes an important and interesting point, and I shall certainly take it back. We need to look over the whole range of activity which encompasses youth training and learning. As the noble Baroness was speaking, I was reminded of the youth mobility scheme, which allows young people aged 18 to 30 from participating countries and territories to learn how to live and work in other societies.

[Lord Howarth of Newport (Lab)]

My Lords, the noble Earl is far too young, and the noble Baroness the Minister is certainly too young, to remember that before we joined the European Union, young UK citizens travelled, studied and worked with great freedom across Europe west of the Iron Curtain. Can she confirm that you do not have to be a member of the EU to participate in the Erasmus programme? Does she agree that the graduates of our excellent universities will continue to be very much welcomed by employers in Europe? Is there any reason to suppose that young people will not in future have the same wonderful opportunities in Europe as they have had in the past?

[Baroness Anelay of St Johns]

The noble Lord is absolutely right. Also, the youth mobility scheme and Horizon 2020 are open to countries that are not members of the EU; it depends on the negotiations between the EU and that third country. The most important thing is that all of us are looking to ensure that the future of our young people can be as rich an experience as it has been in the past.