European Union (Withdrawal) Bill

Lord Newby Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Newby (LD)]

My Lords, it is now a year since your Lordships’ House began its debate on the Article 50 Bill and 10 months since the article itself was triggered. It is generally agreed that both the withdrawal agreement and the agreement on our future relations with the EU have to be concluded before the end of this year. So we are approximately half way through the entire period available for our exit negotiations. What has been achieved so far? The answer: virtually nothing.

The Government have formally agreed on the future rights of EU citizens living in the UK. But this was something that, from day one, they said they were going to do. They have agreed a divorce Bill, but, again, the Prime Minister had long made it clear that the Government were going to do just that—even if some members of her Cabinet did not agree. On the status of Northern Ireland, the Government have agreed a form of words that, far from settling the matter, is interpreted in a completely different way in Ireland from the gloss put on it here in London, as I discovered in a range of discussions I had in Dublin last week. On our future relationship with the EU, beyond bland and meaningless platitudes, we have nothing. In December, we were told that the Cabinet would agree on our future trading relationship with the EU during January. Well, January has come and almost gone, and there is still no sign of such a decision or anything approaching one. The Prime Minister is so cowed by a fractious, disunited Cabinet that she dare not even make a speech on the subject. Many in your Lordships’ House have longer experience of government than I do. However, I doubt whether any noble Lords have seen a Prime Minister or a Government in such a state of paralysis.

In the real world, our growth rate has fallen from the highest in the G7 to the lowest; the head of the OBR describes the economy as “weak and stable”; and the Government’s own assessments of the impact of Brexit on the economy are uniformly negative.

It is against this background that we begin our consideration of the withdrawal Bill. Of course, it was never intended to be a withdrawal Bill: it was supposed to be the great repeal Bill. That was until the clerks in the Commons objected to the use of the word “great”. They could equally have objected to the word “repeal”, because this is not a repeal Bill: it is a transfer Bill, taking the whole bulk of existing EU legislation and turning it into domestic legislation. While it is very easy to dismiss the kerfuffle about the Bill’s title with a smile, it is revealing of the Government’s overall approach to the Brexit process. That approach can be characterised as a combination of arrogance and incompetence, which is now threatening the future of our country, and the ticking of the clock in the background is getting louder every day. The withdrawal Bill exhibits the arrogance and incompetence of the Government in equal measure. Because of this, the Government have turned the Bill, which although very important is essentially a technical measure transferring legislative powers, into one of constitutional and political crisis.

Before turning to the Bill’s deficiencies, I should make it clear that we on these Benches have no intention of derailing it or unnecessarily spinning out debate. As with any other legislation, we will seek to scrutinise it carefully and, where we feel it necessary, seek to amend it. We have been fortified in this approach by the comments made from around the House during Report stage in the Commons. Not everybody went quite as far as the right honourable Kenneth Clarke, who said that:

“I hope and believe that the other place will make an enormous number of changes to this Bill … I hope the House of Lords will throw back some of the bizarre extension of the Henry VIII principle in this Bill”.—[Official Report, Commons, 16/1/17; col. 760.]


But MPs from all Benches, including some leading supporters of Brexit, accepted that the House of Lords had the right and the duty to make changes. I hope that we will not disappoint them.

The Bill is extremely technical and does not make for easy reading, but among the technicalities I see four broad areas where changes are warranted. First, on substance, the Bill does more than its ostensible remit in seeking to make substantive change to legislation and allowing such change to be made as legislation is translated into UK law. The most obvious example of this is the disapplication of the European Charter of Fundamental Rights, but it extends to allowing any change to any EU legislation which the Government think is merely “appropriate”—in other words, virtually anything at all.

Secondly, the Bill gives Ministers the power to make an extraordinarily wide range of changes by statutory instrument and to undermine the role of the devolved Administrations. This unprecedented extension of Executive powers, including Henry VIII powers, is not limited to this Bill but characterises all the Government’s Brexit legislation to date. What the Government seek to do, across the piece—we saw this in the Sanctions and Anti-Money Laundering Bill—is to bypass all normal parliamentary rules and scrutiny. This is not simply to make technical changes, but in areas where primary legislation is the accepted norm, whether creating new public bodies, introducing new criminal charges, or imposing new taxes, fees and charges.

Some 1,000 statutory instruments are apparently required to implement the Bill, yet it is unclear how such a deluge is to be managed and how we ensure that adequate scrutiny is achieved. The Commons has indeed inserted a sifting mechanism, but this is a very weak provision and obviously does not apply here. I am grateful for the recognition from the noble Baroness the Leader of the House that we need to have changes in this respect. I look forward to seeing them.

As for the devolved Administrations, the Government have repeatedly asserted, as we have heard, that they would bring forward proposals to rectify what is currently seen, including by Conservative Members of the Scottish Parliament, as an unacceptable power grab. We still await those government amendments. It is hardly surprising that the Bill has been described by the constitutional affairs committee of your Lordships’ House as,

“fundamentally flawed … in multiple ways”,

and “constitutionally unacceptable”.

Thirdly, we need to reduce the uncertainty and lack of clarity in the Bill about the status of the transposed law. In this respect, the extent to which UK courts should take account of evolving EU law needs to be made much clearer.

The final area of inadequacy relates to what happens if a Brexit deal is reached. The Government have consistently attempted to constrain the role of Parliament at that point. The Bill as it stands fails to give Parliament a meaningful role if no deal is reached and unnecessarily states that the exit date will be 29 March next year come what may—unless a Minister decides otherwise.

The Bill and the Government still also refuse to countenance the idea that, having fired the starting gun for the Brexit process, the people as a whole should decide whether the Government have produced a deal that they find acceptable. Opponents of a referendum on any Brexit deal have argued that such a vote would frustrate the will of the people. Yet, as of today, polls show that the people wish to have such a referendum and that, if it happens, they are likely to vote to remain within the EU. Those of us who argue that the people should decide this issue now represent the views of the majority. The onus is therefore on those who oppose such a vote to explain on what democratic basis they now do so.

I am sure there will be other important technical issues in respect of which your Lordships will wish to improve the Bill, and that amendments will seek to help the Government define exactly what kind of relationship they wish to have with the EU, were Brexit to happen. But there is one overriding fear that I suggest noble Lords should have in their minds as we debate the Bill. The Government have no substantive policy on what Brexit will mean in practice. We are hurtling towards 29 March next year with no hand on the steering wheel. The Government appear to hope to get to the other side of Brexit by muddling through until the last minute, then leaving many of the critical issues covered by a thick layer of ambiguity in any end-of-year agreement. They then hope to ram this pig-in-a-poke deal through Parliament and the legislative process via ministerial fiat. This is to sell Parliament and the people short. It will not do. We must, and I believe we will, prevent it.