European Union (Withdrawal) Bill

Lord Shinkwin Excerpts

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

[Lord Shinkwin (Con)]

My Lords, I put on record my thanks to the noble Lord, Lord Howarth of Newport, with whose arguments on Amendment 15 I entirely agree, for his long-standing championing and reaffirming of disability rights both in this House and in the other place.

However, I have a question that I am struggling with and it relates to the brilliance of the noble Lord, Lord Pannick, of which we have just heard. I might be disheartened by the noble Lord’s arguments but his genius fills me with confidence that Parliament is well able to assert itself and to advance and protect rights after Brexit. Do we not believe in ourselves and in our proud history of championing rights? I believe that we have much to be proud of, and I personally have much to be grateful to our Parliament for, and your Lordships’ House in particular, due to the invaluable help it has given me and the charities I had the privilege of working with for almost 20 years spent in the voluntary sector.

I recall the crucial support that your Lordships’ House gave the Royal British Legion’s Honour the Covenant campaign when I was its head of public affairs. As a result, David Cameron, to his lasting credit, enshrined the principles of the Armed Forces covenant in law. I remember vividly the pivotal role that your Lordships’ House played in saving the crucial position of the chief coroner during the passage of the Public Bodies Bill, thereby securing long-overdue reforms to the coroners service to the great benefit of bereaved Armed Forces families and, indeed, bereaved families in general. However, I do not recall that those campaigns and changes to the law took place at the behest of the EU, the ECJ or the European Charter of Fundamental Rights. Indeed, the EU, as I recall, barely got a mention.

As a child, my condition meant that I was for ever breaking my legs. I lost count of how many times I had to learn to walk again. You would think that you would remember something so basic, but you do not—not after months in bed with your leg in traction and not when you are afraid to put one foot in front of the other for fear of a fracture. You forget how to walk. I fear that we too have forgotten how to walk, and we need urgently to remember. We need to remember how to walk tall.

We need to reflect the simple fact that the people have spoken and they have chosen, by a clear majority, to leave the EU and to take back control of our laws. The UK is their country, not ours; the UK Parliament is theirs, not ours. We may have been their masters once; we are not now. We are their servants. They are the masters, and they have spoken in a once-in-a-generation referendum.

We do not need this charter. We in this great British Parliament set the benchmark for human rights. That was not done by the EU and certainly not by the ECJ, whose judgments, as we have already heard, are informed by the centrifugal force of everything that emanates from the rejected EU political project of ever closer union.

I conclude by agreeing with the noble Baroness, Lady Deech, that a vote in support of Amendment 15 would be a vote of no confidence in Parliament and in your Lordships’ House. It would be a vote of disdain for the clear majority of the British people, who voted to leave the EU. I urge noble Lords not to support the amendment.

[Baroness Ludford]

My Lords, I must have explained myself poorly in my intervention on the noble Baroness, Lady Deech, or else the noble Lord, Lord Faulks, has misunderstood me. I think I said that the charter did apply when national law implemented EU law, not just when it is EU institutions, and this Bill is meant to freeze EU law. I do not think there has been a response to the point made by the noble Lord, Lord Pannick: why, uniquely, should the charter be the only element that is left out? As one commentator, Professor Steve Peers, has said, taking the charter out of the case law is like trying to take the egg out of the omelette.

The charter is the key to the rest of retained EU law and its exclusion runs counter to the claim of continuity and certainty that this Bill is meant to deliver. The Explanatory Notes to the Bill say that:

“As a general rule, the same rules and laws will apply on the day after exit as on the day before”,


and that one of the four main functions of the Bill is that it,

“converts EU law as it stands at the moment of exit into domestic law before the UK leaves the EU”.

It will then be for Parliament, and where appropriate the devolved legislatures, to make any future changes. Why should the charter be different from the rest of EU law which is retained under this Bill?

It is perfectly possible to retain the charter and deal with any redundant sections after exit, just like for every other part of retained EU law. If the charter genuinely adds nothing useful, then that can be sorted out in the same way as for other EU law provisions. The arguments can take place later. Yet the only exception to the Government’s general approach is Clause 5(4), which provides that the charter will no longer apply in UK domestic law after exit day. As the noble Lord, Lord Pannick, has said in Committee and now, that position is simply unsustainable.

The Government’s rationale that it is not necessary to retain the charter because the rights it contains can all be found elsewhere in domestic law, and consequently that there will be no loss of rights, is disagreed with in advice from Jason Coppel QC for the Equalities and Human Rights Commission. He highlights that there will be gaps in protection—for instance, in relation to children’s rights, data protection and non-discrimination.

Various articles of the charter have been referred to in the debate so far. Article 1, providing that “Human dignity is inviolable”, was objected to, but it has been used by the European Court of Justice to help protect LGBT asylum seekers from inappropriate psychological tests and in cases concerning the extradition of individuals to countries where they would face unacceptable detention conditions. That is not some airy-fairy right that we should not care about.

Mention has been made of Article 8:

“the right to the protection of personal data”.

I find it a bit rich that this was relied upon until the Secretary of State pulled out of what was originally the David Watson case, in his successful challenge to DRIPA. Article 8 will not be fully and clearly replicated after withdrawal, even with the retention of the general data protection regulation.

European Union (Withdrawal) Bill

Lord Shinkwin Excerpts

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

[Lord Campbell-Savours]

My Lords, if there are those outside this House who, on the basis of the Division list this evening or what they have heard in this debate, believe that they are getting a fair reflection of opinion in support of a second referendum, then they are mistaken. There are many of us who support a second referendum, and have done for several years, who will be abstaining because we believe that this debate is premature. We believe that it interferes with the Government’s negotiating position and that later on this year will be the relevant time to have that great debate. At that stage, I hope it will be approved by Parliament.

[Lord Shinkwin (Con)]

My Lords, I shall keep my remarks very short. I believe that the noble Lord, Lord Newby, hinted at the elephant in the room, which is respect for the clear majority who have already spoken in a once-in-a-generation referendum. He referred to the result of the referendum as being sacrosanct. Yet this amendment sticks two fingers up at the majority who voted to leave in that once-in-a-generation referendum. It tells them that we as a Parliament may have passed a law giving them the final say, confident that they would vote to remain, but that they did not repay our confidence, they failed the exam, and now there needs to be what amounts to a resit. But the once-in-a-generation referendum was not an exam and the 17.4 million people who voted to leave did not fail it. If we pass this amendment it will be Parliament that fails to respect the people. We need to respect the majority vote in that once-in-a-generation referendum as sacrosanct. Any noble Lord who truly respects the people and the fact that they have already spoken should oppose this amendment.

[Baroness Hayter of Kentish Town]

My Lords, we have heard the case that, having seen the terms of our withdrawal, Parliament should have the option of deciding whether to put those terms to a referendum, with the choice between yes to the terms and yes to stay in; with no other question on the ballot paper, such as better terms; and with the decision to hold a referendum to be taken by both Houses of Parliament, which of course gives the Lords a veto. Having only two options on the table may not be the best suggestion for what is now being called a people’s vote, but let us put that to one side for a moment. I want to question the wisdom of asking the Commons to vote on an amendment to the Bill at this stage, which opens up the issue of whether we hold another referendum, given the implications of such a discussion right now for both our national debate and the negotiations with the EU.

On the former, what would it mean here at home? I see a divided country. The referendum may not have divided us, but it certainly provided evidence of that divide. London and Scotland feel quite a different nation from most of the UK on the Brexit question. Views are sharply divided—not helped by the Government, I am afraid. In June 2016, one might have expected a Prime Minister to reach out to the whole nation, including those hurt by the outcome, to bring the country back together. Sadly, instead, David Cameron walked away and the new Prime Minister, in her approach to the negotiations and the sorts of relationships we want to have with the EU after we leave, instead of trying to reflect the fact that nearly half the voters would have liked to stay in, took what I consider an overhasty decision to focus on a particular type of exit, which is really anathema to those on the losing side. Regrettably, she continues to listen only to those on the winning side—those who called for a referendum, who campaigned for us to come out, who won the vote and who now want the hardest of Brexits: a go-it-alone version, leaving behind the very successful trading relationship we have now. This House has voted against coming out of the customs union, but the Prime Minister is still failing to bring the country together and build a wider consensus. She is turning a deaf ear to business, which is crying out for a better sort of Brexit.

I therefore wonder what will happen to the national debate about the sort of Brexit we want if, quite unnecessarily at this moment, we insert into the Bill the potential of a new referendum, with all the division that that will cause. It is unnecessary because the amendment we passed one hour and 25 minutes ago does not close off the possibility, though nor does it trail it. It gives the option as a potential, as indeed the Labour Party conference agreed some time ago, as my noble friend Lord Adonis reminded us, but my concern is that moving the current discourse on to the issue of a second referendum, when the real question before Parliament is the sort of deal we should be seeking, will foster more division and distrust, and it will let the Government off the hook about their disastrous negotiating strategy and the formulation of that strategy.

The external consequences of the amendment have already been mentioned. It is possible that the introduction of a new element of uncertainty—that the deal might need to go to a referendum—could make the necessary compromises in the current negotiations with the EU harder to achieve.

We do not rule out any form of democratic engagement, but we are not persuaded by this call now. We are not sure what exact question the referendum would ask because, if it is only out on the terms negotiated or out with no deal, that would be meaningless; out on the current terms or staying in may also not be the full range of options. We are not persuaded that this is the debate that Parliament or the people want at this moment. In the words of my noble friend Lord Campbell-Savours, it is premature.

There is a further issue. For the referendum to be accepted by the electorate, it would have to be supported more widely than just by those who favour a particular outcome; otherwise, it will be seen simply as a device to stop Brexit rather than a serious poll on the terms negotiated. At the moment, with just one exception—Nigel Farage—only one side is campaigning for a new referendum. Therefore, that is how I fear it will be seen.

We will abstain on the amendment. But more than that, I ask colleagues across the House to think twice before supporting a referendum now, given that that might further divide the country, rather than unite it; given that the option is always there anyway; and given that that would take the attention off the negotiations at this critical moment.