European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

The Government are incoherent on this issue. We therefore have the right to demand clarity before the Bill becomes law. The Bill takes the UK out of the European Union. The Prime Minister has just said that she wants us to stay in many of its foreign defence and development activities. How will that happen and how far are the Government prepared to commit themselves to it? I beg to move.

[Viscount Hailsham (Con)]

My Lords, my purpose in adding my name to Amendment 12 is to enable the Government, through my noble friend, to explain what arrangements they intend to put in place before Brexit, in order to ensure that the United Kingdom is a full participant in the formulation of foreign and security policies which inevitably will be of great and enduring consequence to us all. The absence of such arrangements would be a conclusive argument against leaving the European Union. Noble Lords should be clear about this: if we wish to punch above the weight that naturally attaches to a country of relatively modest resources, it is because we are part of and not outside the structures of the European Union.

For five years, I had the good fortune to serve in the Foreign Office under the overarching authority of Douglas Hurd. It is much to be regretted that he is not able to participate in this debate. His authority within the diplomatic and international community was great. This was due in part to his patience, his personal integrity, the temperate language that he always employed and his willingness to compromise. He never sought to promote himself by appealing to the wilder fringes of any political party. My noble friend was a model of a Foreign Secretary and I commend his example to all his successors. I digress for a moment and say that I very much regret that this House does not have the opportunity of hearing from Mr Jack Straw and Sir Malcolm Rifkind, both of whom would have made a valuable contribution to this debate.

When working under Lord Hurd of Westwell, I had immediate departmental responsibility for a number of important areas: the collapse of the former Soviet Union; central and eastern Europe, most especially the war in former Yugoslavia; and the turmoil, then as always, in the Middle East. We did, of course, have distinctive political policies on all these matters and we have distinctive bilateral relations with the relevant countries and institutions. But looking back on my time in the Foreign Office I am sure it is true that we made a real difference when we were able to work with our European colleagues and within the framework of collective European policy.

Collectively within the European Union, the United Kingdom was more influential than it would ever have been standing alone. This is not the age of Lord Palmerston or Don Pacifico. If one looks forward to the major international problems that we now face, that judgment remains good. Consider the ambitions of Russia; the ever-increasing power of Asia, especially China; the fact that America is once again detaching herself from the rest of the world and, most notably, Europe; the risk of war on the Korean peninsula; international terrorism; the problems posed by climatic change; the instability in the Middle East and the rise of militant Islam. In respect of all these matters, a collective approach is infinitely more effective than the individual policies of a middling power such as ourselves.

There are also some specific problems to consider. What of our permanent seat at the Security Council? As a member of the European Union, our permanent seat was less controversial than it might have been. Outside the EU, our status as a permanent member will be under increased pressure and, in any event, the status of France will be greatly enhanced.

What about Gibraltar and the Falkland Islands? Outside the councils of the European Union we will not be able to rely on the automatic support of our European neighbours. Further, on any view, our role as America’s principal interlocutor with the European Union will cease. These considerations, by themselves, leaving aside all others, are a good and sufficient argument against leaving the European Union: that is my considered position. However, for the purposes of this debate, these concerns should cause this House to put questions to Ministers. We are repeatedly told by the Prime Minister and others that while we are leaving the European Union we are not abandoning our close ties. The noble Lord, Lord Wallace of Saltaire, usefully summarised our position paper, whatever it actually meant. We need more detail. We do not want bland reassurance. “Brexit means Brexit” is a quite meaningless phrase. It is not a policy or even an indication of a policy. Indeed, it is conclusive evidence of an absence of policy. Therefore, I say to my noble friend that this House is entitled to know in detail what arrangements will be put in place before we leave the European Union to ensure that the United Kingdom is a full, active and influential partner in the policy decisions that will certainly affect the lives of our fellow citizens for years to come. I doubt that this House will get a clear answer. I suspect that we will be none the wiser when the Prime Minister makes her long-awaited policy speech at the end of the week.

If decisions were made at last week’s meeting at Chequers, that is welcome. It is almost, though not wholly, true that any decision is better than no decision. However, we are entitled to ask why on earth such strategic decisions were not taken before we triggered Article 50 and not now, with but 12 months or so to go. The absence of any arrangements and procedures of the kind identified in these amendments is by itself a good reason—there are many other good reasons—to reject the policy of leaving the European Union. Therefore, I look to my noble friend to give clear guidance on what procedures and arrangements the Government propose to put in place. This House is entitled to clear and precise answers to these questions, for they are fundamental in character. This is not a time for indecision, fudge, weasel words or lack of clarity. Having our cake and eating it is not an indulgence now available to us.

[Baroness Deech (CB)]

My Lords, I had not meant to intervene but since the noble Lord, Lord Wallace of Saltaire, has speculated on my views, I wish to put some things in context. Obviously one seeks clarity but I think there is a certain note of hysteria going around. Only a few moments ago, we had a question and answer session showing just how impotent the EU, and, indeed, any of us, have been in relation to Syria. The EU does not even manage to pay its subscriptions to NATO and has been impotent in relation to Russia’s behaviour recently. However, our own performance as a permanent member of the Security Council, a position from which we cannot be dislodged unless one entirely rips up the charter, has been admirable. If we want to continue to be an interlocutor between the continent of Europe and America, it is not a good idea to shoot ourselves in the foot by being even more uncivil towards President Trump than is absolutely necessary. As far as foreign policy and security are concerned, we are members of the Five Eyes group, which, from what I have read, is rather more efficient in its actions than what is going on in the EU. While we of course want clarity, there is no need to panic. We have to consider what the EU has done historically in relation to foreign policy. Over the last 40 years, it has had as many failures as successes whereas our record has been pretty good.

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[Lord Goldsmith]

No, I will make some progress on the arguments which matter. As the Constitution Committee of this House said at paragraph 119 of its report, the conundrum is this:

“The primary purpose of this Bill is to maintain legal continuity and promote legal certainty by retaining existing EU law as part of our law, while conferring powers on ministers to amend the retained EU law. If, as the Government suggests, the Charter of Fundamental Rights adds nothing to the content of EU law which is being retained, we do not understand why an exception needs to be made for it. If, however, the Charter does add value, then legal continuity suggests that the Bill should not make substantive changes to the law which applies immediately after exit day”.


I want to examine the reasons that are put forward for not including the charter. The more I look at the arguments, the more convinced I become that the Government have got it wrong. I will not deny that there are issues as to the best way to bring the charter into effect in domestic law, and there are other amendments which will debate that, but Amendment 13A would require the Government to bring forward proposals for its continued application and the route by which the charter can be given effect.

[Viscount Hailsham]

Would the noble and learned Lord tell the Committee whether he is contemplating that the charter should be incorporated into domestic law as a statute, and as such be capable of amendment?

[Lord Goldsmith]

I am suggesting that the charter is brought into domestic law in the same way as all the other provisions of EU law will be brought into domestic law by this Bill, if it is passed. That means that they will be subject to the powers in the clauses that will be passed for amendment through orders, if this House and the other place approve that way of doing it. They will also, of course, as always, be subject to amendment by primary legislation. I will come on to this, but it is interesting that special protection is given to the ECHR through the Human Rights Act to protect it as we go forward, but there is no protection provided at all for the rights which underlie the charter. That is one of the deficiencies that are not taken account of in the Government’s proposal.

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[Lord Goldsmith]

I said that I would come back to it, and that is what I intended to do. A number of things have happened since the charter was drafted, as I said on Second Reading. The courts have referred to provisions of the charter and have given them effect. The decision was made to give the charter legal effect, which was not the way we started the negotiation. That is what happened in the Lisbon treaty, but that was not the original intention. That is what we argued against at the time, precisely so as to avoid the situation in which the courts were in a position to give effect to rights that we had not expected them to give effect to. That is what changed. That is why we now have a situation, where, as I have said, in a number of cases the courts have said that the charter has an effect and provides enforceable rights to individuals.

I conclude. The Joint Committee on Human Rights considered that the Government’s decision to exclude the charter, while effectively retaining nearly all other EU law, was taken without having undertaken a comprehensive analysis of the implications for the protection of rights. I cannot say whether that is right, but this amendment would require a focus to be given to that so that we can see what the correct analysis is and what the right way to proceed is. I beg to move.

[Viscount Hailsham]

My Lords, I wish to speak to Amendments 14A, 20A and 25A in this group, which stand in my name. I apologise for the absence of my noble friend Lord Bowness, who has put his name to a number of amendments but cannot be here because of weather conditions. He has asked me to apologise to your Lordships for his absence.

The purpose of the three amendments standing in my name is to ensure that the terms of the charter, if incorporated into domestic law, are capable of amendment by Parliament. This may be implied by the other amendments, but I think not. I listened very carefully to the noble and learned Lord. While there is a capacity to remedy deficiencies by regulation, there is no capacity to enable Parliament to mount a careful scrutiny and amendment of the charter. Therefore, the purpose of my amendments is to make it explicit that the charter, if incorporated into domestic law, is subject to parliamentary scrutiny and amendment.

I do not want to say very much by way of a general justification for the need to incorporate the charter; I am conscious that the noble and learned Lord who has spoken has much greater expertise than I. I know that the noble Lord, Lord Pannick, will probably speak. He, too, has much greater knowledge of this than I. I am but a journeyman lawyer and I have never had to wrestle with the charter’s significance in domestic terms. However, I noticed last week in the Times that Professor Bogdanor made a very powerful case for not scrapping the rights. The important thing that your Lordships need to keep in mind is that the charter provides a number of rights and remedies not found elsewhere in our domestic law. That point was made by the noble and learned Lord.

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[Viscount Hailsham]

Yes, I know that is what he has said but I ask noble Lords to think about the impact on those who will lose their assets. That is the point I am making. I agree with my noble friend but my point is: what about the position of those who lose their assets?

[Lord Faulks]

My Lords—

[Viscount Hailsham]

I am just going to finish this point and then I will give way. It is at that point that Article 17 of the charter comes into play. As the Committee will know, Article 17 provides that property is to be protected and, furthermore, that rights of compensation are to be paid. This is the protection that this House would be very chary about giving away. I give way to my noble friend.

[Lord Faulks]

My noble friend will know that Article 1 of the first protocol of the European convention does precisely the same thing.

[Viscount Hailsham]

So there is an overlap, and the question is one of remedies. As my noble friend will know, the remedies under the charter are probably more effective than the remedies under the convention, and that is the point that the noble and learned Lord was making.

[Lord Blencathra (Con)]

My noble friend seems to be saying that we need to incorporate this into British domestic law to protect ourselves from an extremist, wicked Government, but surely if such a Government were elected, one of the first things they would do would be to scrap this law using their parliamentary majority.

[Viscount Hailsham]

That would have to get through both Houses, which would be at least some check on the process. The point I am making is not quite the point that my noble friend has interpreted. I am saying that, if the charter is to be incorporated into domestic law, it has to be the subject of parliamentary scrutiny and amendment, and that is the only basis on which the charter should be incorporated into domestic law.

I accept the noble and learned Lord’s point that a number of aspects of the charter are entirely irrelevant and are hinged on our membership of the Union. Articles 44, 42, 43 and 39 are examples of that. There are also articles in the provision of the charter that many of us would disagree with. The noble Baroness, Lady Deech, has indicated that she does not like many of them, and I happen to agree with her. I heard my noble friends Lord Howard, Lord Lamont and Lord Blencathra chuntering away, and I agree with them: there are many things in the charter with which I disagree. But I am saying that if it is to be incorporated, it should be incorporated in such a way as to enable this House to scrutinise each and every one of its provisions and amend as appropriate.

I remind the Committee that one reason many noble Lords and others wish to withdraw from the European Convention on Human Rights is that the judge-made interpretation of the text is incapable of amendment by Parliament. I wish to avoid that criticism being made of the charter if it is to be incorporated. The suggestion in my amendment to make the charter, if incorporated, subject to parliamentary scrutiny and amendment is perhaps the only example in this sorry business of being able to cherry pick, or to have your cake and eat it.

[Lord Pannick]

My Lords, may I respond to some of the objections that have been raised to the points made by the noble and learned Lord, Lord Goldsmith, with whose speech I agree entirely?

Many of the objections—those raised by the noble Lord, Lord Lamont, are typical—are to the content of the charter or to its implications. The Committee should appreciate that that is not the Government’s position. The Government’s position is not that they seek to exclude the charter because its contents or implications are objectionable. Their position is very clear indeed. If noble Lords read the debates in the House of Commons or look at the report of the Constitution Committee, they will see that the Government’s position is simply that we do not need the charter in this Bill because its contents and implications are already contained in the retained EU law that is being read across through this Bill. So many of the objections that the Committee is listening to are simply beside the point: they are not the Government’s objection to the charter. The Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable. I will not take up time on this, because the hour is late, but if any noble Lords are doubtful about it, I simply suggest they read the helpful opinion by Jason Coppel QC, in which he clearly sets out the equality and human rights position. That is the first point.

Turning to the second point, I am always reluctant to disagree with my noble friend Lady Deech, because she taught me law at Oxford, but I have to disagree with her on this occasion. Her objection, as she explained it, and I hope I do not misrepresent her, is that she is concerned that the charter will enable the courts to overturn legislation enacted by Parliament—she is nodding. But I am sure she appreciates that that is inherent in this Bill. The whole point of the Bill is to read across as retained EU law the content of existing EU law that is applicable to this country and to give it—see Clause 5—supremacy. Supremacy means that it takes priority, as in the Factortame case, over anything enacted by Parliament which is inconsistent. So the suggestion that we must oppose the charter because it gives courts that power is simply inconsistent with what the Bill does.

Turning to the third objection, my noble and learned friend Lord Brown of Eaton-under-Heywood was concerned about whether the inclusion of the charter would, in some way, give a power that expands the role of the charter further than under EU law. My simple answer to that is no, of course it does not. The charter is being read across only because it is part of existing EU law, and it comes across as retained EU law. It will not have any greater force than it already has as part of EU law.