Brexit

Lord Wallace of Tankerness Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, these Benches also welcome the debate. A benefit of the purported Prorogation being nullified is that we are able to hold the Government to account on this crucial issue, at such a crucial time—just 29 days before the date, set back in April, for the further extension of Article 50. Donald Tusk was reputed to have advised the United Kingdom not to waste this time.

Today we have learned, and have heard from the noble Lord, Lord Callanan, that the Prime Minister has made what was being trailed this morning as his final offer. It could equally be described as his first offer. We will have to study this in detail. If one looks, for example, at the suggestion that it provides for the potential creation of an all-Ireland regulatory zone on the island of Ireland, it might appear that the Government’s attempt to get around the border problem is to create two borders. Maybe that is why the Prime Minister has the idea of a bridge between Scotland and Northern Ireland—so it can have a regulatory checkpoint half way across.

The Irish border has been a real difficulty ever since Theresa May set out her mutually contradictory red lines: out of the single market, out of the customs union and no hard border on the island of Ireland. The last of these commands widespread support, but the first two amounted to acquiescence to the right wing of the Conservative Party. It treated the outcome of the referendum as if it had been 95:5 and not 52:48. It was in the interest of holding her party together, rather than the national interest. In December 2016, the European Union Select Committee of your Lordships’ House, in its sixth report, said:

“Retaining customs-free trade between the UK and Ireland will be essential if the current soft border arrangements are to be maintained … Nor, while electronic solutions and cross-border cooperation are helpful as far as they go, is the technology currently available to maintain an accurate record of cross-border movement of goods without physical checks at the border”.


That conclusion of the Select Committee has stood the test of time.

Clearly what we have been seeing today will require analysis, but the real concern with any infrastructure, whether at the border or 10 miles removed from it, is that we will see a reversal of the gains of the Good Friday agreement. It will significantly disrupt all-Ireland trade, as well as impact local communities. When the Minister replies, can he confirm that the proposals that have been submitted to the European Commission today would, if carried through, mean there will be no need to amend Section 10 of the European Union (Withdrawal) Act 2018 at all? It says that:

“Nothing in section 8, 9 or 23(1) or (6) of this Act authorises regulations which … create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU”.


It is important to get that reassurance.

The immediate priority of my party—indeed, of many—is to ensure that the United Kingdom does not crash out of the European Union on 31 October, without a deal. That is why we wholeheartedly supported the legislation promoted in your Lordships’ House by the noble Lord, Lord Rooker, which is now the European Union (Withdrawal) (No. 2) Act 2019. That has sometimes been traduced as an attempt by remainers to frustrate Brexit in its entirety. It is worth pointing out that that Bill was supported by both remainers and leavers. It is fair to say that, in the House of Commons, there were ex-Cabinet Ministers who had voted for the leave agreement more often than the Prime Minister himself had. Therefore, it is wrong to characterise it as being a device or ploy by remainers to frustrate Brexit. It was intended to frustrate Brexit without any deal, which is an important distinction.

When questioned last Thursday, the Minister—as picked up by the noble and learned Lord, Lord Goldsmith —said that the Government would obey the law, but refused to say what the Government understood the law to be. I very much hope that the very detailed analysis the noble and learned Lord has given will be fully responded to by the Minister.

We oppose no deal because, while we believe that leaving the EU at all on any terms would be damaging to jobs, the National Health Service, small businesses, farmers, the aspirations of our young people, to others and to our prosperity, we believe that crashing out without a deal, as foreshadowed in Operation Yellowhammer, would inflict serious damage indeed, not least on the most vulnerable members of our society. Serious job losses, the anxieties of cancer patients, bleak prospects for rural farmers: these were never displayed on the side of buses during the referendum campaign. Indeed, in April 2016, just two months before the referendum, the now Foreign Secretary, Dominic Raab, said on the BBC’s “Daily Politics” that,

“the idea that Britain would be apocalyptically off the cliff edge if we left the EU is silly”.

In March this year, in a newspaper article, Mr Michael Gove said that,

“we didn’t vote to leave without a deal. That wasn’t the message of the campaign I helped lead”.

There is no mandate whatever for leaving without a deal.

In his remarks, the Minister said that the Government have ramped up no-deal preparations. We had a Statement last week on Operation Yellowhammer on the dire consequences of a no-deal Brexit, and the publication of a document about which the First Minister of Scotland, Nicola Sturgeon, said she could see no difference from the one she had previously seen, except that what had previously been described as a “base scenario” had now been changed to “worst case scenario”. But can the Minister tell us about some of the other operations we believe the Government have prepared briefings and detailed analysis of, such as Operation Snow Bunting—the policing response in the event of a no-deal Brexit?

On the subject of policing, will the Minister comment on evidence given yesterday to the Justice Committee of the Scottish Parliament, in which the deputy chief constable of Police Scotland was reported in the Times as having said that Police Scotland has been denied access to sensitive plans to handle civil disruption after Brexit? He said:

“We have, frankly, at times struggled to access some of the more sensitive elements, or layers, of those planning assumptions … Some of those planning assumptions have tended, at times, to be quite London or south of England-centric, and we’ve been constantly reinforcing the different legal and constitutional arrangements in Scotland”.


It would be very helpful if the Minister could tell us what attempts have been made to address these concerns expressed only yesterday by the deputy chief constable of Police Scotland.

We are told that there is an Operation Kingfisher—a bailout fund to prop up businesses in the event of a no-deal Brexit; and an Operation Black Swan, a worst- case disaster scenario for surprise events with huge repercussions. Can the Minister give us more details of these contingency planning analyses, which we understand are going on within the Government but they are not being totally open about? Are they planning to have any other birds? One could speculate whether Operation Emu might be for a plan that will not fly.

At the time of the attempted Prorogation, a number of pieces of legislation had not been completed. The Queen’s Speech that started this Session back in June 2017 foresaw,

“legislation to ensure that the United Kingdom makes a success of Brexit, establishing new national policies on immigration, international sanctions, nuclear safeguards, agriculture and fisheries”.—[Official Report, 21/6/17; col. 5.]

How many of these Bills have actually been passed? What about the ones which have not? Are the Government saying, having thought that they were necessary to make a success of Brexit, that Brexit will not be a success because they have not passed them?

If one listened to the exchanges in the Supreme Court on the final day of the recent case, the Advocate-General for Scotland, the noble and learned Lord, Lord Keen of Elie, appeared to say that the Government had provided the court with an explanatory note on Brexit-related primary legislation not required for an exit date of 31 October. It would be very helpful, if that note exists—I understood that it was given to the court—if it could be placed in the Library so that we could see the Government’s analysis of legislation that has not been passed. In the event of an agreement being reached, can the Minister also tell us how quickly he thinks the implementation legislation could go through your Lordships’ House?

I have two concluding points. We are told constantly that the theme of the Conservative Party conference is, “Get Brexit done by 31 October”. That conjures up an idea that simply leaving with or without a deal is all that is required. Should that happen, people will very quickly realise that that is only the end of the beginning; that a new, and likely very long, phase of negotiations on our future relations with the European Union would ensue, even longer and more difficult were we to crash out without a deal. There is no sign that the Government have given any thought to the way forward, so what kind of public disillusionment will be created by the kind of simplistic sloganizing that does not bear out reality?

On these Benches, we believe that the best way forward is a people’s vote. Can any of us for one moment think that if the June 2016 result had been 52 to 48 the other way around Brexiteers would have said, “Fair cop, guv, we’re packing up our tents and we are going to quit the field”? Of course they would not. Painful though it would have been to have heard Bill Cash continue to go on, I would have respected the long-term and long-held beliefs of people who have opposed our membership of the European Union for a long, long time. Why, therefore, should not my colleagues and I be afforded a similar respect for the beliefs that we have held for a long time? Why should we abandon those views that we have held for decades? If there is not a people’s vote, we have said that we will campaign in a general election for a majority and a democratic mandate to revoke Article 50.

Brexiteers do not have a monopoly on patriotism. I believe passionately that the prosperity, security and the well-being of our country and the communities that we serve—and not least future generations—are best achieved by our continuing membership of the European Union. No one is going to deny our right to campaign for it.

--- Later in debate ---

[Lord Hamilton of Epsom]

The noble and learned Lord, Lord Goldsmith, is putting words in my mouth. I did not say anything improper. I just said that, considering the judiciary is completely divided on this issue, it was remarkable that all 11 members of the Supreme Court reached the same conclusion. The issue at heart was whether the business of proroguing Parliament was judiciary. The previous court had said it was not judiciary and the Supreme Court said it was. What has actually happened—

[Lord Wallace of Tankerness]

Will the noble Lord give way?

[Lord Hamilton of Epsom]

No. I have given way to so many people, and we are always being told that we cannot go beyond six minutes.

As everybody will know, the judgment of the Supreme Court alluded to the fact that a number of judgments had been made that had political connotations. This is a step much further: the Supreme Court making a political decision. What has the judgment that we could not prorogue Parliament actually resulted in? We have sat for another eight days while we go over all the old ground. One of the reasons we are where we are now is that Parliament is incapable of reaching any conclusion on what it should actually do about leaving the EU. Have we advanced any further by the fact that we have sat for longer? No, we have not. Have the Government been held to account? Well, on the margin, I suppose. Has it really made any difference to anything? No, it has not—for the simple reason that nothing is actually going to happen until the EU Council meets on 17-18 October. After that, of course, it will be decided whether the proposals we have put forward are acceptable, whether there is a deal to be put to Parliament and so forth. It is after the Queen’s Speech that the Government will have to be held to account, and very little has been achieved by Parliament sitting over all these extra days.

The real problem is that if the Supreme Court says, “We’re going to get into the business of not just interpreting but actually making the law, and we’re going to make political decisions when we do that”, as sure as night follows day, Parliament will say, “If the judges are going to make these political decisions, they must be appointed by Parliament”. That is what will happen if we go on down this road. What will happen? A Select Committee in the House of Commons will interview candidates for the Supreme Court. It will ask them about their political views: which way they voted in the last election, what their views are on social matters such as—

--- Later in debate ---

[Lord Callanan]

That is the political game as we all attach different names to it. The noble and learned Lord, Lord Goldsmith, also speculated on the use of the Civil Contingencies Act in relation to the extension. I assure the noble and learned Lord that there are no plans to use the Civil Contingencies Act in a no-deal scenario. I point noble Lords to the words of the Prime Minister on contingency powers. He said that,

“what we want to do is get a deal and there is no purpose in discussing the hypothetical scenario”,

around the Benn Act. Let me be clear and reiterate to all noble Lords, as I have said a number of times on this subject: we will of course obey the law.

[Lord Wallace of Tankerness]

Let me pick up this point. He said that of course we will obey the law. If the House of Commons has not agreed to a deal nor approved no deal by 19 October, does he accept that the law—which he says he will obey—means that the Prime Minister must seek an extension?

[Lord Callanan]

I am not going to get into providing interpretations of an Act that was not government legislation, which we advised against and which we said, in our view, had considerable deficiencies. These are matters for lawyers. It is ultimately for the courts to determine what the Act says and requires, so I will go no further, no matter how many times people intervene on me, than saying that we are going to abide by the law.