Ministerial and other Maternity Allowances Bill

Lord Lilley Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Thursday 25th February 2021 Lords Chamber

[Baroness Hoey (Non-Afl) [V]]

My Lords, as a signatory to many of the amendments, particularly that of the noble Lord, Lord Hunt, I am obviously happy that they will not need to be pressed, although personally I would have preferred the use of “woman” rather than “mother”. However, like everyone, I welcome the change. As I think I have said before, when I first looked at it, it seemed amazing that a Bill about maternity, which involves women and mothers who can have children, should not have included those words, so I very much welcome the change.

To add to all the blushes of the noble Lord, Lord True, my admiration for him has escalated even further. The way that he handled our sometimes difficult meetings with him, and the way that he has handled this Bill overall, has been an example of what a good, listening Minister—and, indeed, a listening Government—should do. But whether that helps his promotion prospects, I am not so sure.

There are so many people to thank. There is no point in going through all of them again but, without the amendment of the noble Baroness, Lady Noakes, we would not be here today. Her amendment expressing regret at Second Reading really opened everything up and, even if I had not come to the Chamber that day thinking that what was happening was a nonsense, I would have gone away thinking that it was a nonsense if I had listened to her.

I also thank the noble Baroness, Lady Nicholson, for so diligently getting us all together over Zoom. I also learned an enormous lot from the speech of the noble Lord, Lord Winston. I found it really fascinating. Today, we have seen Parliament at its best in dealing with the Committee stage of a Bill.

I want to make three points. First, we have to remember that drafting Bills should not be left just to civil servants. Clearly, government and we in Parliament decide on the wording of a Bill. As the noble Lord, Lord Balfe, said, the drafters have got it very wrong here and it needs to be looked at. I hope that the review, which I presume the noble Lord, Lord True, will talk about in his summing up, will look at some of that and at how we can get this right in the future.

Secondly, I genuinely hope that the Government will now use this as an opportunity to start challenging those who have been attacking women and will speak up for the protection of women’s rights based on sex. That is absolutely crucial. There has been too much silence from both the Government and the Opposition, and it is very important that that message goes out today.

Finally, we in Parliament and in your Lordships’ House have today sent out a very clear message to women in the country that we will defend their rights and speak out. As the noble Baroness, Lady Fox of Buckley, said, we are in a special position and must speak out when sometimes others are afraid to do so.

For me, as a fairly new Member of your Lordships’ House, this has been a wonderful exercise in working together. The cross-party nature of that work has proved successful. I hope that we can continue that because, as has been said very clearly, this is only the beginning of this very important issue, and I hope that the Government will have learned from it. I thank the noble Lord, Lord True, and look forward to hearing from him about the review, because that is very important; it cannot just end here today.

[Lord Lilley (Con)]

My Lords, it is a great pleasure and privilege to follow the noble Baroness, Lady Hoey, whose constituent I used to be when I lived in Vauxhall. As three previous speakers mentioned their Tottenham connection, I should mention that, rather than fight the noble Baroness, Lady Hoey, I stood as the candidate in Tottenham. I fought Tottenham, and Tottenham fought back.

If I may, I will rattle through my congratulations. First, I congratulate the Attorney-General, whose forthcoming happy event has given rise to this debate. Secondly, I congratulate my noble friend the Minister, whose good sense, patience and quiet determination have brought about this change. Thirdly, I congratulate my noble friend Lady Noakes, whose brilliant leadership and eloquence have infused this whole debate and raised its tone.

Fourthly, I congratulate all the speakers at Second Reading, in which I did not take part. They showed what is best about this House—how it can be a revising Chamber where party allegiances are secondary to the determination to get things right, and thank heavens they did get things right. It would have been deplorable if we, as a revising Chamber, could not even revise a Bill whose original wording did not make sense.

Why does it matter? I was taught as a child “Sticks and stones may hurt your bones but words will never hurt you”, but this is not about insults. It is not even primarily about the rights of women and transgender people; it is about the control of language. Totalitarians of all stripes know that controlling language is a crucial step in gaining control of society. If you determine the vocabulary, you often determine how people think. Orwell spelled it out in Nineteen Eighty-Four. He said that

“the whole aim of Newspeak is to narrow the range of thought. In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it.”

That, of course, is part of what is happening.

Incidentally, I do not think that the agenda being pursued by those seeking to control our vocabulary is driven by any sympathy for transgender people. On the contrary, it seeks to use trans people as shock troops in pursuit of an extreme form of egalitarianism which aims not to give equal rights to all of us, despite our manifest and manifold differences, but instead to deny the existence of those differences.

Happily, today that agenda has been rolled back. I hope that we have sent a message to those in the Cabinet Office and those who draft legislation in the future that will be as clear and robust as a message that was sent—as I discovered when I was responsible for Customs and Excise—by the Commissioners of Customs and Excise back in 1865 to a hapless clerk whose wording they did not like. They wrote:

“The Commission observe that you make use of many affected phrases and incongruous words ... all of which you use in a sense the words do not bear. I am ordered to acquaint you that if you hereafter continue in that ... way of writing and to murder the language in such a manner, you will be discharged for a fool.”


I hope that that message has hit home loud and clear today from this Chamber.

[Baroness Deech (CB) [V]]

My Lords—or, taking a cue from the noble Lord, Lord Triesman, how long will it be before I ought to say “My peers”?—these amendments are less about maternity leave, although even that word is now suspect, than they are about the proper use of language to reflect and protect those to whom it refers, some of whom have a special status within the law. If I can cut straight to the solution, it is this. The Interpretation Act 1978 says that

“words importing the feminine gender include the masculine”,

so if the words “mother” or “woman” are used in this Bill, which incidentally and memorably Joshua Rozenberg has referred to as the “Suella Braverperson Bill”, an individual trans person—a man who had given birth— would be covered by the words “woman” or “mother” in the same way that allowances granted to men in other areas of the law include women in their remit. So there is no reason why “woman” should not be used, although I accept that there is a consensus around “mother”.

As drafted, the word “person”—as distinct from “woman”—in this Bill could only be of application to a person born a woman who transitions, gives birth, is a Minister, seeks maternity leave and is bothered about terminology. This number is too small to count. Set against that the worldwide population of women who feel that obliteration of their being is offensive. Human rights organisations have called for the retention of gender-specific language in law because, by neutralising the language, the actual issue is also neutralised. The international NGO Plan International, writing about the needs of girls and women, calls for their protection to be maintained by using the right terminology. It may not be true of women in this House or country, but the status of many women around the world as mothers and child-bearers is all-important and must not be overlooked.

Going wider than the Bill, the use of neutral language is confusing, as has been said, for those who have little command of the English language. In health situations, one risks not reaching them by using phrases such as “persons with cervices”, “menstruators” and “persons with vaginas”. How would noble persons, otherwise known as noble Lords, like to be referred to in health communications as “persons with prostates” or “sperm producers”? As for the threat to free speech, I assure the noble Lord, Lord Wallace, that it certainly exists: if you try talking at UCL, KCL, Warwick and many other universities, including Cambridge, about Zionism, Israel, Jews, genetics or social mobility, you will be shut down.

Existing law is entirely in favour of retaining the words “mother” or “woman”. The McConnell case was about a man who started IVF treatment just six days after obtaining his gender recognition certificate, which was granted because he had made a declaration that he intended to continue to live as a man until death. He had not had a hysterectomy in part because, reportedly, he had not ruled out the possibility of having children. Section 12 of the Gender Recognition Act says that the status of a person as

“the father or mother of a child”

is not affected by the acquisition of a gender under that Act—so the court ruled that it was correct to list the man as the mother of his baby on the birth certificate, having regard to the rights and welfare of the child. As such, in this Bill we can speak of “mother” without in any way limiting the status of a trans person in a new gender.

Other laws confirm this. Section 33 of the Human Fertilisation and Embryology Act 2008 defines a mother as:

“The woman who is carrying or has carried a child”.


The Equality Act 2010 refers repeatedly to “man” and “woman”, “male” and “female”. In Section 13, it says that a “protected characteristic” includes a woman who is breastfeeding and that, when a man is treated differently and might regard that as discrimination,

“no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.”

Section 60 of the Immigration Act 2016 prevents the “detention of pregnant women”. Regulation 12 of the Civil Partnership (Opposite-sex Couples) Regulations 2019 refers to

“a child born to a woman during her civil partnership with a man.”

As such, by supporting these amendments, let us reinforce clarity, precision and dignity in language, preserve the special status of women in childbearing and motherhood, follow precedent and simply show some common sense. I thank the noble person, Lord True, for all that he has done in this respect, and I hope that he does not get trolled. I commend these amendments to your persons’ House.

Protocol on Northern Ireland: Disruption to Trade

Lord Lilley Excerpts

Thursday 14th January 2021 Lords Chamber

[Lord Lilley (Con)]

Will my noble friend remind the House that the Northern Ireland protocol, as was made clear by our Attorney-General and the EU itself, is intrinsically temporary because the EU, under Article 50, was unable to enter into permanent trade agreements? This is why it could not even start negotiating a trade agreement with us until after we had left. However, as we resolve, by patches and devices, the structural problems that will grow because of the differences between EU legislation and our own, to avoid a barrier in the Irish Sea we will develop means that will enable us to apply the same mechanisms to avoid having a barrier or any infrastructure between Northern Ireland and the Republic when the Northern Ireland protocol fades away.

[Lord True (Con)]

My Lords, we are addressing specific issues—for example, steel announcements and groupage announcements are imminent—and there will be what my noble friend calls “patches”. Obviously, in the longer run the protocol’s existence will be determined by the people of Northern Ireland.

Economic Update

Lord Lilley Excerpts

Tuesday 12th January 2021 Lords Chamber

[Lord Agnew of Oulton (Con) [V]]

The Government do not accept that the approach the noble Lord is suggesting is the right one. We have put in place the trader support scheme in Northern Ireland, which I had some responsibility for; some 28,000 businesses have registered for it, including more than 12,500 in Northern Ireland, and 23,000 of those are in a ready-to-trade state. Only last weekend, we managed to move 1,000 lorries across from GB into Northern Ireland; that was after the end of the in-flight concession, which was a big concession, essentially saying that goods were already in transit out of the EU at the point of delivery into Northern Ireland. That has worked smoothly. We will, of course, see problems over the next few weeks as people adjust to a very new system, but I am confident that we will be able to reduce the friction substantially over the weeks and months ahead.

[Lord Lilley (Con)]

My Lords, one lesson of the pandemic is that in a crisis, government bodies, from the MRHA authorising vaccines to local authorities authorising pavement cafes, can take decisions in a fraction of the time they used to. Given the importance of encouraging the growth of existing businesses and the creation of new ones, will my noble friend put pressure on all government bodies to accelerate decision-making, by requiring them to publish the times they take to make decisions and by setting times after which approval will automatically be deemed to be given?

[Lord Agnew of Oulton (Con) [V]]

I very strongly support my noble friend’s views on this. We have seen some remarkable decision-making across government over the last few months, at a much faster rate than normal, and I encourage my noble friend to keep up his campaign to remind people of what is possible. In my own oversight of HMRC border-readiness, I used a simple mantra, which is that it does not take any longer to make a decision than not to make a decision, and it was remarkable how quickly decisions were made. I hope very much that we can continue with that philosophy.

European Union (Future Relationship) Bill

Lord Lilley Excerpts

3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Wednesday 30th December 2020 Lords Chamber

[Lord Lilley (Con)]

My Lords, I respect those who have devoted their lives to integrating Britain into the European project. Their evident sadness today is the one downside to the joy I feel but, as good parliamentarians, I hope that they—like the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Morgan, at the beginning of this debate—will see some upside in the restoration of parliamentary sovereignty.

I served on the committee scrutinising the transfer of European law into British law. There were tens of thousands of pages of regulations, accumulated over four decades, few of which have ever been debated, and none voted on. Indeed, had every parliamentarian voted against them, they would still have become the law of the land. Tomorrow, that changes. We will be free to amend, repeal or enhance any of these measures, but it is a mistake to believe that the only choice is between high standards and lower ones. There are many ways in which rules and regulations can be improved without affecting the level of environmental, social or other protection, none of which anyone wishes to reduce, despite what the noble Baroness just implied.

When negotiating in the Council of Ministers, I—and, I gather, my Labour successors—brought a different regulatory philosophy to that of our European friends. We focus on outcomes; they focus on process. We set principles; they try to legislate for every conceivable eventuality. We allow everything that is not forbidden; they tend to forbid anything that is not specifically allowed. Our priority is to protect consumers; theirs is protecting producers. The result is that our approach encourages innovation, stimulates competition, facilitates new entrants to a market and minimises the burden of compliance without reducing standards. As a result, it creates a more dynamic and enterprising marketplace while maintaining high standards.

The clearest example of this different approach is the complete trust between British common law and continental Roman law. It is no coincidence that the world’s four leading financial centres—London, New York, Hong Kong and Singapore—are all based on common law, whereas the EU’s biggest financial centre, Frankfurt, ranks only 15th in the world. However, in the EU, detailed prescriptive laws such as MiFID, with its 2 million paragraphs, have steadily overwritten common law. That is why the Bank of England said that the overriding priority for the UK was to become a rule maker, not a rule taker.

We can make a success of Brexit if we bring that same spirit of rule-making, not just in financial services or common law but to the whole acquis communautaire, to make Britain’s economy more innovative, competitive, dynamic and prosperous. Your Lordships’ House will play a key part in this.

UK-EU Future Relationship Negotiations and Transition Period

Lord Lilley Excerpts

Tuesday 8th December 2020 Lords Chamber

[Lord True (Con)]

I repeat: we are seeking a deal. As the Prime Minister said a few minutes ago, hope springs eternal. There are significant differences. I do not agree that there would be a crisis that could not be surmounted by the British people.

[Lord Lilley (Con)]

Will my noble friend ignore the pleas of those who want us to cave in and accept every demand of the European Union? Does he recall that Canada is even closer to the United States than we are to Europe? It has a perfectly normal trade agreement with the United States that does not require it to accept American laws and rules or give America its fish. Why should we be any different vis-à-vis the European Union from Canada vis-à-vis the United States?

[Lord True (Con)]

My Lords, my noble friend makes a profound geographical point. I agree with him.

Great Britain and Northern Ireland: Access for Goods

Lord Lilley Excerpts

Thursday 12th November 2020 Lords Chamber

[Lord True (Con)]

My Lords, as I said earlier, the Government certainly take extremely seriously the need to ensure the security of this trade. I agree with the noble Lord that the protocol obliges both the UK and the EU to seek to streamline trade between GB and Northern Ireland.

[Lord Lilley (Con)]

Will my noble friend gently remind the European Union that any obstacles to trade between Northern Ireland and Great Britain would be contrary both to Article 6 of the withdrawal agreement and to the Act of Union, which is a fundamental part of our legal order which the European Union has pledged to uphold? I hope and expect that the EU will agree arrangements to prevent such obstacles, because to refuse such agreement would constitute bad faith, justifying the activation of those parts of the internal market Bill that I hope the other House will reinstall and this House will duly accept.

[Lord True (Con)]

My Lords, I very much agree with what my noble friend said. I underline his last remarks: it is astonishing that Keir Starmer required the Labour Party in this House to vote against a legitimate legal commitment to unfettered access.

EU Exit: Negotiations and the Joint Committee

Lord Lilley Excerpts

Wednesday 21st October 2020 Lords Chamber

[Lord True (Con)]

My Lords, the United Kingdom is a sovereign nation and has relations with every other country in the world. Of course, our relationship with our European neighbours is important and we will continue to negotiate with them, whether in this process or in whatever circumstances we find in the future.

[Lord Lilley (Con)]

Can my noble friend confirm that EU negotiators have been gently reminded that, if there is no free trade agreement and, regrettably, tariffs are applied to trade in both directions across the channel, the cost to EU exporters will be getting on for three times the cost to UK exporters, because they largely export highly protected goods to us, which we will be able to obtain far more cheaply elsewhere once we are outside the customs union?

[Lord True (Con)]

My Lords, we were told by the Front Bench opposite yesterday that the House was sending a signal to the European Union, so I infer that our proceedings are followed closely in Brussels, and I am sure my noble friend’s remarks will have been noted.

EU: Future Relationship

Lord Lilley Excerpts

Wednesday 23rd September 2020 Grand Committee

[Lord Lilley (Con)]

My Lords, ever since the referendum, my advice to businesses has been “prepare for no deal”. It has always been far more likely than is generally assumed. However, partly because of the controversial internal market Bill, I am inclined to think that the chances of a deal have now risen. I will explain why.

There are two unusual features about the negotiations between Britain and the EU. One makes them simpler than other free trade negotiations; the other makes them harder. They are simpler because we start where most free trade agreements and negotiations end up after years of haggling. We have zero tariffs and we want zero tariffs; it cannot take more than 10 minutes to negotiate. We have identical or equivalent rules and regulations, and we need to agree only a divergence mechanism: what happens when one side or the other changes their rules from the starting point. Such arrangements exist in most free trade deals and are comparatively straightforward to negotiate.

Why, then, are these negotiations harder than normal free trade agreements? Normal agreements and negotiations are win-win affairs: each side tries to offer concessions that cost it the least but will be of greatest value to the other side. Therefore, a mutually beneficial win-win outcome usually emerges. However, the European Union has an overriding political imperative, which is to discourage other member states from following our example. The EU believes that this means that Britain must be seen to get a bad outcome even if that means that the EU gets a less good result, economically, than was possible.

When one side is more interested in the other side losing than itself gaining, that creates a very unstable negotiating dynamic, which is why no deal has always been a significant possibility and even been used as a threat. However, as we have approached the endgame, it has become clearer to both sides that, although no deal would be a suboptimal outcome, it would not be as painful to the UK as the EU and many in the UK—and, indeed, in this debate—have supposed and that it would be more painful to the EU itself than they or others had initially assumed.

If there is no deal, each side will apply its tariffs to the other. That will cost British exporters to the EU about £5 billion a year. That is half the £10 billion saving from not making a net contribution to the EU any more. Therefore, UK plc will be a net £5 billion better off: small beer, but not negative. By contrast, losing tariff-free entry to the UK market would cost EU exporters £13 billion a year and, of course, the EU will also lose the £10 billion a year that we pay it. Therefore, the EU will be a net £23 billion worse off; again, that is not huge compared with the size of the European economy, but it is more difficult to cope with in these difficult times.

Why do EU exporters stand to lose nearly three times as much from tariffs as British exporters to the EU? It is partly because the EU exports far more to us than we do to it, but the main reason is that the goods that it exports to us are highly protected goods, which it can sell to us only because we are currently prevented by the EU external tariff from buying them more cheaply elsewhere. Therefore, it is the realisation on both sides that no deal, though not the best outcome, is not a disaster for the UK but would be a problem—or a cost—for the EU that has made the latter look to the Northern Ireland protocol for other negotiating levers.

The withdrawal agreement has even more loose ends and internal contradictions than most international agreements. That is not surprising, given that Boris was given only 100 days to renegotiate it, during which Parliament did its best to shackle his negotiating powers, but we signed it and accepted it because it has a mechanism to resolve those internal contradictions: the joint committee, within which both sides are treaty-bound to negotiate in good faith to resolve outstanding problems by the end of the transition period.

However, recently the EU has been pointing out—doubtless as a negotiating lever—that if it simply refuses to reach agreement in the Joint Committee then, arguably, all goods going from Great Britain to Northern Ireland will have to pay the EU tariff, and all goods coming from Northern Ireland to Britain will have to fill in EU export declarations, and if the EU refuses to list the UK as a third country from which it will accept food imports, not only will we be unable to export food to the continent, but it would be illegal, as the EU has threatened, to take a single kilo of butter from Great Britain to Northern Ireland. As far as I am aware, the EU has not seriously denied making those implicit threats.

Those outcomes would be economically damaging to Northern Ireland, flagrantly in conflict with the Belfast agreement and contrary to the Acts of Union with Ireland and Scotland. They would inflame unionist opinion, demonstrate manifest bad faith and breach the clear intention of the withdrawal agreement itself, so the UK Government had no option but to introduce legislation enabling them to override those potential interpretations of the withdrawal agreement, should they emerge.

In doing so, the UK Government adopted the EU’s own approach to international law, clearly set out by the Advocate-General in the European Court of Justice in the Kadi case. He said that

“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally in the Community legal order. The relationship between international law and the Community legal order is governed by the Community legal order itself, and international law can permeate that legal order only under the conditions set by the constitutional principles of the Community.”

I cannot see that we are doing anything different from what the EU would, very sensibly, do if there were a conflict between international law and its internal legal order. I invite the noble Baroness, Lady Ludford, as the last remainer of note due to speak in this debate, to be as critical of the EU doctrine as I have no doubt she will be of the Government’s behaviour. However, because we have effectively called the EU’s bluff, there is every reason to suppose that it will in practice resume negotiating sensibly and help us to resolve those issues, and there will be an agreement at the end of the day.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My understanding is that the noble Baroness, Lady Ludford, is not participating in the debate this afternoon, so I now call the Minister to reply.

Finance Bill

Lord Lilley Excerpts

2nd reading & Committee negatived & 3rd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Friday 17th July 2020 Lords Chamber

[Lord Lilley (Con)]

My Lords, it is unfortunate that because, during the worst recession in two centuries, we have not had a full debate on the economy, we have to use this debate on the Finance Bill, but so be it.

Most recessions are the result of a shortfall of demand. This, uniquely, is caused by suppression of supply. There is considerable pent-up demand. I agree with my noble friend Lord Lamont, who said we must end the lockdown and encourage people to return to work, and Parliament itself and this House should set an example in that.

If we do so, and if the economy is enabled to, many businesses will spring back—more rapidly, I suspect, than some suppose—to full activity, but some sectors will have permanently shrunk. Many viable businesses have spent the last few months devising ways to produce previous levels of output with fewer employees, so we face a vast potential increase in unemployment, and unemployed buildings and other resources. We need to make it easier and quicker for new businesses to set up and expand, and for existing firms to expand, grow and diversify.

During the crisis, we have learned that public regulatory bodies can, in an emergency and under public pressure, take in days and weeks decisions that previously took months or years. We need to ensure that they do so henceforth to enable businesses to increase their activities rapidly. In most areas, we cannot scrap regulations, so we should accelerate decision-making in planning, building controls, environmental measures, health and safety and so on by, for example, setting time limits. If those time limits are not met, consent will be deemed to have been given. Every department should be required to publish at six-monthly intervals the times that it takes to give approvals or refusals or to make decisions when requested by business. Every Select Committee should hold those departments to account. Past experience has shown that the British labour market is more dynamic than any other in Europe; if we do this, we will be able rapidly to bring people back into work in viable and productive employment.

House of Lords and Machinery of Government: Consultation on Changes

Lord Lilley Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord True]

My Lords, I must repeat that, obviously, the commission will be looking at a wide range of matters and the broader aspects of the constitution. The issue that the noble Lord mentioned is of great constitutional importance and certainly deserves examination.

[Lord Lilley (Con)]

My Lords, the problems of moving this House away from the Commons and Whitehall may be insuperable. However, should we not, perhaps by moving the Moses Room and Westminster Hall to York, try to bring Parliament closer to people from whose views and values it was so clearly estranged during the last Parliament? It would surely strengthen this House, first, if more people saw your Lordships’ excellent work as a revising Chamber and, secondly, if closer contact with people outside the metropolitan bubble made us more respectful of their views.

[Lord True]

My Lords, my noble friend makes a number of important and relevant points. As I said yesterday, in some respects the House already takes part of its work outside London. I do not believe this is something to which your Lordships should close your ears.