European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I understand that that political point can be shortly made and it would dispense with all our consideration of this Bill altogether.

I played quite a part in the 2011 Act—along with the noble Lord—in stating what the position in law was for EU law in this country. I was keen to point out that the treaty did not of itself have that effect. It became an argument later when the noble Lord, Lord Pannick, argued about these and other matters in the Supreme Court. However, the point was that the authority for EU law in our country is the 1972 Act. This House affirmed that and the House of Commons accepted it.

The important thing about the 2011 Act is that its repeal is consequential on the repeal of the 1972 Act and our departing from the European Union. Matters that are consequential are usually covered in schedules. If noble Lords wish to discuss purely consequential legislation, so be it, but it is not necessary. As the noble Lord, Lord Adonis, said, we have used it quite a few times and, given the amount of time we have spent on this Bill, it is appropriate that this provision repealing the 2011 Act should be in a schedule.

[Lord Adonis]

My understanding is that it is not consequential that the repeal of the 2011 Act under this schedule will take place when this Bill becomes law at a point determined by a Minister, whereas we only repeal the European Communities Act 1972 on Brexit day, 29 March next year, or later under Clause 14(4) if a Minister chooses to extend the date.

My understanding—it is important to tease out these issues because we are a revising Chamber—is that this is being done deliberately by the Government. They want to forestall any cases coming under the 2011 Act as soon as possible. I assume they have read the legal opinion which raised doubt about the interpretation of the 2011 Act and do not want them rumbling through the courts before the repeal of the European Communities Act 1972 takes effect.

[Lord Mackay of Clashfern]

That does not prevent the repeal of the 2011 Act being consequential on the main provision in this Bill.

[Lord Dykes]

My Lords, one has distinct memories of the European Union Bill and it then becoming an Act. The noble Lord, Lord Adonis, has done a great service by referring to it, although his objectives in so doing might be somewhat different from noble Lords in other parts of the House. That Bill was introduced at the beginning of the coalition period. I have always thought that the coalition was agreed too quickly. Both leaders, understandably, were keen to get going with it and some aspects of the agreement were left vague and unresolved. There was a great deal of excitement about the initial period of this unusual and first-time type of coalition. For those of us who pompously describe ourselves as good Europeans—rather than just fairly keen on the EU— this was a painful moment. Given the celerity of the agreement of the coalition at the beginning, the contents of the Bill were never properly gone into or discussed, despite the substantial vote in the House of Commons to which the noble Lord, Lord Adonis, referred. Again, that was because it was the beginning of the period of this new exercise of the interesting and fascinating coalition.

I believe David Cameron was not much interested in the legislation. He regarded it as a routine inclusion in the incipient contents of the coalition’s programme—not the things that appeared later on—but for the Liberal Democrats it was important. I remember it being described by a senior colleague who was then a member of the coalition representing the Liberal Democrat portion of it—I will not say who—as, “Just routine smoke and mirrors, old boy, don’t worry about it”. However, it was not easy for people to accept it in that sense and I remember vividly a substantial rebellion within the Liberal ranks in the Lords on this matter. There may have been a small one in the Commons as well—I cannot exactly remember those details—but in the Lords there was a substantial rebellion led by Baroness Shirley Williams and others in the team who were not members of the coalition Government because they objected strongly to the contents of the Bill.

The contents were elusive, vague and cynical, That is what put off people who regarded themselves as enthusiastic members of the European Union—members of the club—unlike some other people in Britain who were only half-hearted members of the club, including politicians. For example, a transfer of powers to Brussels had to be accompanied by a referendum and could take place only if the Government got the authority of Parliament to do so. However, the Government could suggest that something was too minor a matter to bother about and just leave it aside.

An extraordinary, ironical conclusion of one of the important items was that the enlargement of the Union would not be included in the Bill. In those days there was a rumour that Turkey was going to join at some stage—there were endless discussions about that possibility—and yet that would not have been part of the matter discussed in the democratic Parliament of the United Kingdom, particularly in the House of Commons. There were other anomalies which looked like opportunism. The rebellion was substantial among the Liberal Democrat ranks here, and the legislation was then forgotten and buried.

I always thought that rather than object to the repeal—I can understand why the noble Lord, Lord Adonis, is suggesting it—the infamous 2011 Act should be repealed as quickly as possible. That needs to be on the agendas of both the Lords and the Commons for the future. At the moment, therefore, I am torn between agreeing with the noble Lord, Lord Adonis, for the reasons he has enunciated, and saying that it would be a mistake and that this should be included in the total repeal list. After all, getting rid of that obnoxious legislation would not be a precursor to any other anticipated legislation following the same theme later on.

--- Later in debate ---

[Lord Adonis]

My Lords, I have always disregarded health warnings on the grounds that one would never eat anything at all if one proceeded down those lines.

The debate has been disappointing in that I do not think the two key points I made have been responded to. I have huge admiration for the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mackay of Clashfern, but they have not addressed the point that, in the way the Bill is framed, the repeal of the 2011 Act is emphatically not consequential on the repeal of the European Communities Act 1972. Rather, it is consequential on the enactment of the Bill and it will take place well in advance of Brexit day and the repeal of the European Communities Act 1972. If it was indeed consequential on the repeal of that Act, which I fully accept it should be because we would not be a member of the European Union at that point, I would have no difficulty at all with the repeal in Schedule 9. It is because it is being deliberately accelerated in advance that there is an issue.

[Lord Mackay of Clashfern]

It cannot happen until immediately after Parliament has passed a Bill fixing a date for leaving the European Union. The 2011 Act has no substance or content at all apart from the European Union treaty, so this idea that it has to be consequential in time is an extra. It is consequential in its subject matter. That is what is really important.

[Lord Adonis]

My Lords, we might not leave the European Union next year. We have not enacted the legislation to do so. At the moment there is no treaty. The 2011 Act would be repealed under the terms of the Bill. The two are clearly not consequential.