European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, on the morning after the 1996 presidential election, which he had lost, Senator Bob Dole was asked how he had slept. He replied, “Like a baby. I woke up every two hours crying my eyes out.” I know how he felt. I believe that our country has made a historic mistake, but it has made it. The people have spoken, and we leave the EU at the end of the month. This means that we should not consider any amendment which could conflict with that deadline.

However, within that constraint, I have to disagree with the noble Lord, Lord Forsyth—for the first time, I think—and, with great humility, with the noble Lords, Lord Cormack and Lord Taylor. I think the House of Lords should do its job. We are, as the noble Lord, Lord Forsyth, said, a revising Chamber. We need to look particularly closely at what this Bill says and its implications for relationships between the Executive and Parliament, between the Executive and the judiciary, and between the constituent parts of the United Kingdom. We shall spend much more time on this than the Commons did. Some of the issues that we shall discuss were not discussed in the Commons at all. Where we are not satisfied with the Government’s explanations, I believe we should give the Commons the chance to think again.

First, on Parliament, as others have pointed out, there is no provision in this Bill for parliamentary oversight of the Joint Committee. It will carry out the crucial task of developing the detail of how we withdraw. There is no provision for oversight of the negotiations on the future arrangements. The earlier, October version of the Bill, gave Parliament powers on mandate, monitoring and outcome, as the noble Earl, Lord Kinnoull, pointed out. All that is gone. The European Parliament has such powers; this Parliament, apparently, is not to have them. The House may wish to reflect on that contrast.

Secondly, I do hope that we shall hear in Committee from the noble and learned Lord, Lord Judge, the greatest living expert on Henry VIII powers, because Henry VIII is endemic throughout this Bill, particularly, of course, in Clause 21. As others have mentioned, in relation to Northern Ireland, Clause 21 gives the Government the right, for a year, to pass by regulation any change which would otherwise require primary legislation, including changes to the Act itself. That is quite striking; we should reflect on the precedent.

Thirdly, we need to consider what the Bill does not say. Here, for me, the paramount issue is how the devolved Administrations are to be involved in the Joint Committee and in the future negotiations. In the Queen’s Speech debate, we heard from the noble and learned Lords, Lord Hope and Lord Wallace of Tankerness, as well as the noble Lord, Lord Reid of Cardowan, about what is now a clear and present danger to the 1707 union. Edinburgh, Belfast and Cardiff resented being kept at arm’s length by Mrs May’s Government and being blindsided by Mr Johnson’s Irish surrender. With Stormont back up and running, it should be possible to find a way of lancing this boil. The House may wish to consider asking the Commons to write the requirement into the Bill.

Finally, declaring my interest as a trustee of the Refugee Council, I believe that we must not forget the Dubs amendment. The Government want us to do so, although the Minister assured us that government policy has not changed. If the policy has not changed, why are the Government taking away the provision in the 2018 Act? It was a pretty modest provision. I believe we need to seek its retention. The argument is very simple: what kind of country do we think we are? Are we really meaner and less humane than our predecessors were in 1938, 1956 or 1968?

I have not addressed the substantive Brexit question; the Bill is about how, not whether, we leave. I myself fear that the process will be protracted and painful and will end badly for our country and for all of us, particularly those most left behind. However, there is not an end of history; the story will go on:

“that which we are, we are;

… Made weak by time and fate, but strong in will

To strive, to seek, to find, and not to yield.”

I believe my children will see us back where we belong: in the comity of European nations that share common values, work together for the common good and are determined not to yield in its defence.