Vol. 788 Wednesday No. 90 31 January 2018

PARLIAMENTARYDEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDEROFBUSINESS

European Union (Withdrawal) Bill Second Reading (2nd Day)...... 1531 Questions Income Inequality...... 1584 NHS: Claims Budgets...... 1586 Brexit: Transition Period ...... 1589 Prisons: Careers Guidance...... 1591 Personal Statement...... 1593 European Union (Withdrawal) Bill Second Reading (2nd Day) (Continued)...... 1594 Lords wishing to be supplied with these Daily Reports should give notice to this effect to the Printed Paper Office. No proofs of Daily Reports are provided. Corrections for the bound volume which Lords wish to suggest to the report of their speeches should be clearly indicated in a copy of the Daily Report, which, with the column numbers concerned shown on the front cover, should be sent to the Editor of Debates, House of Lords, within 14 days of the date of the Daily Report. This issue of the Official Report is also available on the Internet at https://hansard.parliament.uk/lords/2018-01-31

The first time a Member speaks to a new piece of parliamentary business, the following abbreviations are used to show their party affiliation: Abbreviation Party/Group CB Cross Bench Con Conservative DUP Democratic Unionist Party GP Green Party Ind Lab Independent Labour Ind LD Independent Liberal Democrat Ind SD Independent Social Democrat Ind UU Independent Ulster Unionist Lab Labour LD Liberal Democrat LD Ind Liberal Democrat Independent Non-afl Non-affiliated PC Plaid Cymru UKIP UK Independence Party UUP Ulster Unionist Party

No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2018, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1531 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1532

House of Lords opportunity to ensure that we have the right—I was going to say “appropriate”, but after yesterday’sdiscussion Wednesday 31 January 2018 on that word, I will say “right”—clauses and detail when the Bill leaves this House. My right honourable 10 am friend Iain Duncan Smith said that he supported the principle of the Bill and the need for it, but recognised that, Prayers—read by the Lord Bishop of Chelmsford. “in Committee there will be need to review how some of those checks and balances are introduced, and I hope that is done properly and powerfully”.—[Official Report, Commons, 7/9/17; European Union (Withdrawal) Bill col. 378.] Second Reading (2nd Day) I can think of no better Chamber to do that, and I look forward to noble Lords taking part in it. 10.07 am Many noble Lords know my interest in agriculture, Moved on Tuesday 30 January by Baroness Evans of the countryside and the environment. A high proportion Bowes Park of the necessary legislative changes fall within the agriculture and environment arena, for which Defra That the Bill be now read a second time. has responsibility.I particularly welcome the Government’s recognition of the importance of maintaining standards Amendment moved on Tuesday 30 January by Lord Adonis of animal welfare and for bringing forward the draft At end to insert “but that this House regrets that animal welfare and recognition of sentience Bill. I the bill makes no provision for the opinion of the know too that there is to be a consultation on fishing people to be secured on the terms on which Her and fish stocks. Crucially, this must directly consult Majesty’s Government propose that the United with the devolved Administrations. Kingdom withdraw from the European Union”. An agriculture Bill is proposed, as is the creation of a stand-alone, non-government statutory body to oversee, Relevant document: 9th Report from the Constitution scrutinise and hold the Government to account. I do Committee not share the gloom of the noble Baroness, Lady Miller of Chilthorne Domer, but I know that this new Baroness Byford (Con): My Lords, I begin today’s body needs to be robust if it is to succeed in protecting debate following on from my noble friend Lady Morris the environment for future generations. Yesterday, in of Bolton. I agree with her that we must push ahead his contribution the noble Lord, Lord Krebs, spoke with this Bill and give it a Second Reading. Preserving about the need to preserve the things that affect us all: existing EU law as it currently applies to the UK is air quality, fresh water, habitats and tackling pollution. essential in providing continuity and legal certainty on All of these are currently EU based, so it is crucial that the day of, and in the days after, exit. This does not this new body is in place in time before we exit the EU. mean that I am totally without concerns about the Bill Many noble Lords have made excellent contributions as it currently stands, but it will be up to noble Lords to this debate, expressing many different views, but I to engage in discussions in Committee and during the hope all of us believe that we must move this Bill following stages of the Bill. forward whatever our views are, whether we were for I am grateful to my noble friend the Leader of the leaving or remaining within the EU. There is a great House for restating the Government’s proposal to urgency in getting this Bill on the legislative path. create a sifting committee or committees. Perhaps in Whatever our views, we must join together and make winding up the debate the Minister will be able to sure that this important Bill is on the statute book update us on this matter. Could he also give us more sooner rather than later. details as to the timetable envisaged? I believe that we have a very tight timetable, not only for primary 10.12 am legislation but for the handling of negative instruments and for the necessary robust scrutiny by the various Lord Liddle (Lab): My Lords, I agree with what the committees. Is the Minister able to tell us exactly what noble Lord, Lord Butler of Brockwell, said yesterday: proportion of the 800-plus—some say 1,000-plus— this Bill is a dagger to my heart. I am overcome by statutory instruments that it will be necessary to lay three emotions. The first is a sense of shame, which I will follow the negative procedure and how many feel many Members in this House must share, that might follow the affirmative procedure? I am not clear over decades our political leadership failed to make on that point. Can he also comment on the safeguards the case for Europe. The referendum should never that will ensure that these are made by the dates laid have been called, and the leave vote should never have down in law? won. My concerns with this Bill fall mainly in three The second is a personal sadness. I am proud to parts: first, the role of Parliament and the Henry VIII represent on Cumbria County Council a town called powers in the Bill as it currently stands; secondly, Wigton. Its most famous son is my noble friend Lord devolution; and, thirdly, the timetable for and the Bragg, who has just been awarded the companion of importance of proper scrutiny. My noble friend Lord honour. Wigton voted strongly to leave. I love my leave Hill described the Bill as boring, but I do not agree. constituents—I really do. Yes, they voted to take back For me, this is probably one of the most important control. They are no fans of EU remoteness or Bills we shall be dealing with for a long time. It is an bureaucracy, and nor am I. But their revolt was against 1533 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1534

[LORD LIDDLE] use its new freedoms only to break free of decent an economy that is grossly out of balance, a world of European standards in pursuit of some deregulated work that no longer offers self-respect and a lack of mid-Atlantic tax haven. I say to Jacob Rees-Mogg opportunity that means that more than half their that what he derides as a vassal state would be a failed children leave their home area after school and never state. come back. Their grievances have, for too long, been Secondly, if we cannot win the single market, let us allowed to fester.The seeds of anti-immigration populism help bring on the storm—which the noble Lord, Lord were sown for the unscrupulous to exploit. Where now Patten, talked about in his brilliant speech—that could is the modern regional policy, the New Deal for the reverse Brexit by forcing a general election or another north and Midlands, the Marshall plan for the left referendum. I agree so much with the noble Lord, behind that England needs? It is nowhere under this Lord Higgins, in his magnificent defence of representative Government. They are suffocated by a pursuit of democracy, but if it comes to it and a referendum is Brexit that can only make Wigton’s problems worse. the only way of reversing this historic mistake, we My third emotion is a determination that the bunch must accept it and, indeed, advocate it. of scoundrels who propagated their Brexit lies are not In conclusion, this brings me to Labour. Europe is going to get away with it. As a citizen and Labour in a category of its own in terms of its impact on activist, I will fight Brexit to the last. Yet as a Member future generations. It transcends any party manifesto of this House I understand our role. Yes, I will work or Whip, I say to my noble friend. I do not want to be for amendments to this Bill that soften the impact of a rebel; I want our party to lead, to seize this opportunity Brexit, safeguard essential rights,weaken the extraordinary to demonstrate that, in contrast to this wretched powers the Bill grants to the Executive to override the Government, we can live up to our national responsibilities legislature, protect our devolution settlement and give and our internationalist heritage. I say to my colleagues Parliament a meaningful vote on no deal as well as on these Benches: let us do our bit to make it happen. any deal. But does this response to a highly technical Bill 10.20 am measure up to the scale of events and our constitutional responsibilities? This clueless Government are pursuing Baroness Featherstone (LD): My Lords, it is a pleasure a “I haven’t got a clue” Brexit. The only basis on which to follow the powerful contribution of the noble Lord, the Prime Minister can unite her party is pursuing a Lord Liddle, every word of which I agree with. I fear Brexit that knows not where it leads. In December, to that my contribution will be more like “Just a Minute”— keep the Irish quiet, the Prime Minister signed up to there is no hesitation but definitely quite a lot of full alignment. Last week, to hang on to her job, she repetition and a certain amount of deviation. attacked her Chancellor for having the temerity to I would like to believe the Government when they suggest that Brexit would lead only to very modest say that everything will be all right, everything will be changes. In Brussels, the Prime Minister pleads with transferred into UK law, the Government will maintain our EU partners for a deep and special partnership. our environmental standards, I need not worry about Back home, she assures the Brexiteers it will be deep the precautionary principle and it is not a problem if only for as long as they want it to be, and Britain will retained law is not quite the same. Of course, with the have the freedom to diverge whenever it wants—in best of intentions all the EU directives that have kept Michael Gove’s case, probably before the ink is dry on us on the straight and narrow will still be underpinned. the treaty. Is it deep and special? I call it shallow and Of course, Ministers will not under any circumstances perfidious, and as a negotiating strategy it is a totally misuse statutory instruments. I would love to believe unrealistic fantasy. the Government. I almost believe that they have good What has been striking about this debate so far is intentions, but you know what they say: “The path to the lack of any positive vision for Brexit. How can hell is paved with good intentions”. Good intentions Britain proceed with the most momentous decision on are not adequate. The Government could give no its future since the Second World War when no one is assurances of good intentions that would satisfy me. seemingly capable of explaining what our Brexit future The law, the face of the Bill, is the only place where will be? “Ah,” people say, “the people have decided, doubts, concerns and worries can be laid to rest. and the will of the people must be obeyed”. This is, There is a governance gap in environmental standards. frankly, thin gruel. In a democracy, the public are While the Government can say that standards will be entitled to change their mind, and the rest of Europe maintained, where is the equivalent legal last resort to keeps telling us that Article 50 can be reversed at any replace the force of the ECJ? Judicial review is not an time. The leave option that seemed so simple when answer. Fear of infraction concentrated ministerial people voted in June 2016 is now so complex, and the minds on meeting legal obligations, but there is no only question before us is how big the Brexit damage enforcement in the Bill or even reporting obligations. will be. We cannot and must not have a diminution of The job of Parliament is to challenge the vacuum environmental rights. Without the protection of primary into which at present the Government are leading us. legislation, we cannot accept words alone. It is no How can we make a real difference? The first way is to wonder that so many Members of the other House press the Commons relentlessly to vote to stay in the expressed so much concern over the Bill giving Ministers single market and customs union—better to be a the power to change primary legislation with a test rule-taker of European laws that have a progressive that is as flimsy as whether Ministers think it appropriate. European vocation at their heart than a theoretically There has to be a legal test as to whether it is necessary, sovereign rule-maker that in practice will be driven to at the very least. 1535 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1536

One of the key principles under EU law has been market and have interconnectors between them and the precautionary principle, which forces those whose the UK mainland. As Ireland will remain a member of actions might harm the environment to prove in law to the energy market and will obviously want to go on the contrary. The Bill rules this out. It also rules out trading energy with mainland Europe, it will have to the polluter pays principle. These are protections that pass through the UK, a non-member. have stood us in good stead. The precautionary principle There is no economic upside to Brexit in the case of and the polluter pays principle have kept us on the energy—or actually anything—only possible downsides, straight and narrow. They have forced us in the right and the positive pan-European climate efforts about direction, but they are explicitly ruled out in Schedule which we have all been so enthusiastic and which are 1, so where are those protections to come from in so necessary to our commitments to the Paris Agreement future? The Government continually reiterate that there and our own Climate Change Act may be undermined. will be legal continuity, but that is not in fact the case. The Government must enshrine EU environmental principles in domestic law. 10.26 am Alongside the principles, there is also a need to carry across provisions from EU directives that are Baroness Boothroyd (CB): My Lords, I admit at the not transposed into UK law. Some parts of EU law outset that the referendum result was a very bad, sad did not need transposition while we were a member day for me, but that is democracy for you and I am not state, but they need it now. We have to have the reneging on it. I wrote an article during the campaign ability—nay, we have the obligation—to put right any for a national newspaper urging my side of the argument deficiency in terms of failure to transpose EU law: it to campaign with greater passion and vigour, but it must be a duty and not simply a power. If Brexit had little effect and we lost. It is not the first time that comes to pass—and I still hang on to my “if”—we I have been on the losing side. must be sure that laws that are currently EU regulations So I am all the more bemused now to find that it is and laws that implement EU directives are transposed the winning side that is blowing a fuse because of the into UK law with the same force and intent as when confusion that its victory has created—confusion inside we were a member state. On Report in the other place, government, in industry and commerce, in the City of there was cross-party support for new Clause 13 on London, in the European Union and across the wider the certainty of retained EU law. world. I do not recall a comparable crisis of such The Government are trying to assuage the many prolonged intensity and danger to the national interest concerns that we have in this regard by proposing that and the country’s future as a United Kingdom. each measure will be dealt with on a case-by-case Regardless of how we voted in the referendum or basis. That gives no comfort to those of us who what we think of the Government’s squabbling factions suspect that the Government wish to find a way of now, the duty of your Lordships’ House is very clear. moving away from these strictures. As energy and That, I submit, is to assert our rights to scrutinise, climate change spokesperson, I have huge concerns amend and, if needs be, to reject unacceptable parts of about a whole range of threats in that regard related to this Bill and to use the entire arsenal of our powers our departure from the EU. and prerogatives to limit the damage that threatens the I want to touch on our membership of the internal sovereignty of Parliament and the national interest. energy market. If we continue to participate—and of Let us put aside partisan allegiances on this issue. course we must—we will be obliged to comply with Nothing less than the nation’s future is now at stake the relevant EU legislation. We need to continue to be and that is surely more important than veiled threats as influential over EU energy post Brexit if we are to to the leadership of a divided party and a possible ensure that energy trading works to the benefit of UK change of government that would start the process all consumers. The Government claim that they want to over again. This is no time for self-indulgence. hold consumer energy bills down, so this is vital. If this House can help the Government to contribute Unless we adopt the energy acquis, we will not be able some sense to this important Bill, it should do so. The to maintain membership of the relevant bodies. Without report from the Constitution Committee shows what proper management, this could lead to higher energy needs to be done. Similarly, if some of the arguments prices and energy supply shortages. tabled by opposition parties or independent groups There is still no certainty about our continued improve the legislation, we should give them a proper, membership of the internal energy market. If we leave fair hearing. it, what will happen if we have a gas security incident? In my book, parliamentary democracy has always Currently, there is an obligation on all members to meant that parties that win elections or referendums meet the essential energy needs of any member state do not take all the spoils of victory. They may call the before the non-essential needs of their own. That is tune, but they are not in the divine position of writing there to prevent a country from having a total power every note of the score. In a democracy, winners do failure. If we leave the energy market and we have an not take all. In my experience, reflection and well- issue with our gas supply, member states will no longer considered second thoughts oil the wheels of a liberal have an obligation to help us. We will be at the back of state and a free society. the queue and I do not think that Europe will be very Accusations by ill-informed pundits—mainly in the kind to us. media—against this House and our alleged irrelevance Equally, with interconnectors, we could, if things belie the facts. If Parliament does its job in making get bad, be unable to export gas to the continent. this Bill and the legislation that follows in the coming Northern Ireland and Ireland have a single energy months fit for purpose, I see no reason for a second 1537 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1538

[BARONESS BOOTHROYD] constitutional impasse that might result in the Bill referendum, but we must end the pretence that the being lost. That would be a disaster for this House. referendum was the last word on Britain’s future in Their outcome, of course, is Brexit denied, but the Europe. We are no longer debating a slogan on the result would be a constitutional uproar, which would side of a bus; that is long gone. Legally and lead either to the reform of this House or, probably, to constitutionally,this Bill must be made copper-bottomed, the abolition of a second Chamber. iron-clad and storm-proof before our statutes can I want this Government to get the best deal they revert to their made-in-UK format and we can examine can for our future relationship with the EU. Our the decades of made-in-Brussels directives. I believe future is not bleak; it may be different, but we will that the Constitution Committee of this House has continue to trade with Europe and with the rest of the shown the way. Its findings should not be ignored. world. My noble friend Lord Hill of Oareford was Unless the Bill is made fit for purpose, the Prime absolutely right when he said yesterday that, Minister’s call for frictionless access to the European “we must surely place a greater priority on being able to shape our market, on which our economy depends and which own future than on preserving the status quo”.—[Official Report, future generations seek to enjoy, will remain a pipe 30/1/18; col. 1389.] dream and we, as parliamentarians, will have failed in Staying in the single market and the customs union for our duty. ever would be the worst of both worlds: we would be unable to influence the rules of the single market and 10.32 am unable to negotiate our own free trade agreements. Of Viscount Astor (Con): My Lords, it is a great pleasure course, there are still difficult issues to be dealt with, to follow the powerful speech by the noble Baroness, including Northern Ireland and our relationships with Lady Boothroyd. In preparing for this debate, I looked the other devolved Administrations, and, not least, the up the Hansard debates on joining the European Union Henry VIII powers in the Bill. in 1972. Two things stood out. First, how few Members The process of leaving the European Union is one of this House spoke then—19, as opposed to 190 today. of unprecedented scale and complexity. As well as Secondly, how the warnings from Lord George-Brown, giving effect to the will of the people to take back then dismissed as scaremongering, seem to have come control of our laws, the Government must be able to true. I am not entirely sure what lessons we must learn deliver Brexit while ensuring certainty for people and from those debates except, perhaps, one. Whatever for businesses. As many noble Lords have said during one says in this House will probably turn out to be the debate, we need more clarity from the Government true at some point, even if it takes 45 years. on how they see our future outside the European I spoke in this House and campaigned in the Union. A chaotic Brexit, without a solid legal foundation, referendum in favour of staying in the European Union. would not be in the national interest. The Government We lost the argument. The British people wanted their need to be able to adapt the laws we are repatriating to sovereignty back. We addressed lots of economic the new situation of being outside the European Union. arguments and offered a good deal, with substantial While I understand the concerns raised about the reforms, to stay in. It was difficult, if not almost scope of the Henry VIII powers, I am concerned that impossible, to explain. We did not deal with the basic Parliament will not have the time it would need to concerns about sovereignty—the control which the make all those changes before we leave. I agree, however, British people wanted returned from the unelected in that Henry VIII powers should, if possible, be brought Brussels to their elected representatives here in in by the affirmative rather than the negative procedure. Westminster. Perhaps we should not be afraid in this House of I want to take issue with those who say that the rejecting affirmative instruments if we feel they are British people did not understand what they were wrong and that we should ask the other place to think voting for. I think they did; they had a greater again. understanding than some of their elected representatives. The Government have chosen an extraordinary Some were surprised by the result but, after all, the approach, but these are extraordinary times. We all referendum result just reflected the view of a majority have the right to hold different views, to argue our case of the British people which has been growing for the and to persuade others to change their mind, but we last decade. should not thwart the will of the people as expressed I have never been elected, but I have campaigned in in the referendum and in the recent general election. It every general election since 1974. I cannot think of a is worth reminding those who complain about the general election result when we won but did not deserve referendum that it was a manifesto commitment by to win, or when we lost but did not deserve to lose. the party that won the subsequent general election, When it comes to politics, the British people usually and it was then passed in the House of Commons by a get it right. As we know from Ken Clarke, you do not vote of 554 for and only 53 against—a majority by all have to have read every detail of the EU treaty to be the main parties except the Scots nats. either for or against. This Bill is not about the terms of our exit but We have 10 days in Committee, as well as Report about the mechanism of how it will happen. We should and Third Reading, where there will be plenty of not be distracted by debates on the merits or detriments opportunity for this House to act as it should. If of leaving the European Union. The Government necessary it can revise, or ask the Commons to think themselves have made a commitment to ensure that again, but not wreck nor block this Bill. There are Parliament will have the opportunity to consider the those who want to destroy the Bill and force a deal and approve what they have negotiated. We do 1539 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1540 not need another referendum, and this Bill is not the has dealt with that, pointing out that a bad deal would place for a referendum clause. As my noble friend be a disaster for the whole country. Then there is, Lord Hamilton of Epsom pointed out, if there were to “Nothing is agreed until everything is agreed”. That is be a referendum, no one could agree when it would a fine sort of thing to encourage one’s negotiating happen or what the question would be. But we do need partner. parliamentary scrutiny, and that started yesterday in The worst mistake of all is that the Government this House. Therefore, I welcome the Bill and look have announced their red lines without deciding on forward to the subsequent stages of Committee, Report their objectives. The truth, as we all know, is that the and Third Reading. Cabinet is deeply divided between the “Get out whatever the cost” group and those who think that the UK’s economic future should be taken into account. Sadly, 10.38 am the Prime Minister has so far proved undecided, if Lord Radice (Lab): My Lords, I congratulate the that is the right word, between those two factions. noble Viscount, Lord Astor, on his speech. I particularly There are many speakers who are far more expert noted his warning about the dangers of a chaotic than me on the legal and other parts of the Bill and Brexit, to which I will return in a few moments. I the need to improve it, including the very excellent congratulate my noble friend Lord Liddle and the chairman of the Select Committee on the Constitution. noble Baroness, Lady Boothroyd, on their magnificent During the passage of the Bill I will concentrate on speeches. Clauses 9 and 14, because these need strengthening to I have not spoken on Europe since the immediate give the essential strength to Parliament to make its post-referendum debate. Some noble Lords may think role meaningful in deciding whether the Government that a very good thing, but, to other colleagues, I have achieved a successful outcome to the negotiations—in would like to explain the reason. It certainly has not my view, that is key to the Bill—one that takes into been a question of my changing my mind on Europe. account the economic and strategic interests of this My personal Damascus came when I was 18. It was great nation of ours. 10 years after the end of the war, in the summer of My final point is a more comforting one in what I 1955. I was between leaving school and my national believe is a sad situation. Both the referendum and the service, and I set out to bicycle from Rotterdam to more recent general election have made me draw the Rome—I admit that I took one or two trains. As the conclusion that if our generation lets the country Foreign Ministers of the six prepared for the momentous down, the next generation—that of our children and Messina Conference, which launched the common our grandchildren—will not stand for a botched result market, I mostly pedalled along the roads and lanes of that divides this country artificially from its natural northern Europe. At night I stayed at youth hostels, partners. I hope it does not happen. where I discussed with my continental contemporaries hopes of building a new and better Europe in which 10.44 am war would be ended for ever and prosperity for all Lord McNally (LD): My Lords, it is always a pleasure would be assured. It became clear to me that not only to follow the noble Lord, Lord Radice, as it is to act as was it right that Europeans, or continentals, should warm-up man for the noble Lord, Lord Cormack. unite together, but Britain should not stand aside from I refer the noble Baroness, Lady Byford, to the such a constructive and imaginative project. I still excellent speech by the noble Lord, Lord Liddle, in strongly believe that a medium-sized European power which he explained very clearly why many of us cannot such as Britain should join with its neighbours for the follow her advice simply to get the Bill through as a good of its own citizens and of our continental friends. technical Bill. The problem we have had right from the Turning to the present and the referendum, even start—from the consultative referendum, to the Article 50 though it was a narrow victory for the leavers and it vote to this vote—is that as soon as the vote is over the has divided the country almost in half, all the same I Government put on the ratchet and say, “Well, you accept the result, if with a very heavy heart. I also can’t go back now; we had a 500 majority for this”. thought that the Cabinet and the Prime Minister Parliament must continue to keep its eye on what is ought to be given a chance to negotiate our departure, happening and make decisions that are relevant. which I suspected would be extremely complex. But Just over a week ago, Juliet Samuel wrote in the even I, a dyed-in-the-wool pro-European, did not think Daily Telegraph: the Government would make such an awful mess of “This year, the Government has to conduct one of the most things. The first phase has taken far too long—so difficult negotiations in our history. It is not up to the job”. much so that we now face the pressure of what Mr Barnier Nothing that has happened in the last 10 days has calls the ticking clock; you can almost hear it now. weakened the strength of that criticism, and many of One might have hoped that things would get better the speeches from the Conservative Benches yesterday from now on, but I am afraid that has not been the reflected that unease. We have a deeply flawed Bill case. One problem is that the Prime Minister has made presented by a dysfunctional and leaderless Government. a whole lot of unfortunate soundbites designed not to Any attempt at leadership by the Prime Minister, and help the negotiations, but to appease the Eurosceptics. there is a tug on the choke chain by the hard-line “Brexit means Brexit”—she clearly thought that that Brexiteers in her Cabinet and her party to drag her was a clever remark to make. On the contrary, it is back from anything that does not fit with their ideological deeply confusing and ambivalent. What kind Brexit obsessions. Then, we have the absurd spectacle of those does she mean: a hard or a soft one? Then there was, twin titans, Sir Bill Cash and Mr Jacob Rees-Mogg, “No deal is better than a bad deal”. The Select Committee delivering their warnings from the Back Benches and 1541 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1542

[LORD MCNALLY] There is always an element of doubt about speaking the TV studios, while that amiable chancer, David in a debate with so many speakers. I do so for two reasons. Davis, busks his way through meeting after meeting The first is my three children, all in their 20s and all with the laconic assurance that it will be all right on proud citizens of Europe. I want to be able to look the night. Meanwhile the Cabinet plots, jostles and them in the eye and say, “I did everything that I could manoeuvres for position like players in a TV soap to avoid this disaster”. The second is that I want to put opera. It would be farcical if it were not the future of on record my pride in a European project that has set our country at stake while the Conservative Party an example to the world of how old enmities can be plays out its own tragicomic version of “Game of buried and a new era of peace and prosperity can be Thrones”. delivered and underpinned by civil liberties, human Such a situation puts a heavy responsibility on this rights and the rule of law. House to amend the Bill before us. We must address its Yesterday I was much moved by the reminder from flaws and propose remedies, as the mantra of “Brexit the noble Lord, Lord Krebs, of the realities for his means Brexit”becomes ever more trite and meaningless. family at the end of the Second World War. I always The first responsibility of this House is to defend our recall the famous Zec cartoon of the battle-weary constitutional settlement against what the late Viscount Tommy holding a victory wreath on Victory in Europe Hailsham described as an elective dictatorship. Day with the caption, “Here you are! Don’t lose it As the noble Lord, Lord Lisvane, reminded us again!”. I believe profoundly that we are in the process yesterday, it is one of the deepest ironies that a Brexit of losing influence in creating a better Britain, a better campaign that promised a return of sovereignty to this Europe and a better world that was passed on to us by Parliament ends in the biggest switch of power from the generation who came back from the Second World the Legislature to the Executive that we have seen in War—the Heaths, the Whitelaws, the Healeys, the modern times. I am in no doubt that the House of Callaghans. They came back saying, “Never again”. I Lords has not only the right but the duty to resist such think we are throwing away a great deal. Until that a power grab. To do otherwise would have long-term deal is finalised, I will fight it. consequences for the powers and authority of this Parliament that go far beyond the immediate issue of 10.52 am Brexit. I ask noble Lords to read the magnificent Lord Cormack (Con): My Lords, that was not a speech just made by the noble Baroness, Lady Boothroyd. warm-up act; it was a very moving and powerful In passing, I note that when she describes our objective speech, and I echo much of what the noble Lord said. as to make the Bill “copper-bottomed, iron-clad and I too felt obliged to speak today for similar reasons. I storm-proof”, that description also applies to the have two sons who are much older than his children—they noble Baroness. I will get my ears boxed for that when are in their late 40s—but they were passionately in we are outside. favour of staying in, while my two elder grandchildren, On the economic consequences, I have never seen undergraduates now, were totally bereft. Brexit in Captain Oates terms: Britain leaving the European tent to inevitably perish as we try to go it I do not like this Bill and I did not want it, but it is alone. We will be poorer than we would otherwise before us. I hope there will not be a Division on it this be—even the Government’s own assessments tell us evening. I also hope the noble Lord, Lord Adonis, that—but we will get by. We will be able to earn a who moved his amendment yesterday with great passion crust. However, I see no evidence at all that “global and force, will not test the opinion of the House Britain” will find better deals free from the supposed tonight. His own Front Bench have made it plain that encumbrances of our membership of a 500 million-plus they could not support him, and the result could be single market. I wish the Prime Minister every success misinterpreted because he would not get the votes that on her visit to China and in her desire to drive up our he might otherwise obtain. That is not to say that I trade with that country. I shall give her a benchmark would vote for a second referendum—I find it very to aim for: let us try to reach the level of German trade difficult to think of that—but I just make the point. with China, which is four times our own—and all The Bill must pass, but the Act that it becomes and from the security of that single market. that emerges from your Lordships’ House must be an As we have heard time and again during this debate, assertion of parliamentary democracy and not an the clock is ticking while every sector of the economy abdication of it. The Bill needs significant amendment, cries out for clarity and certainty. The Prime Minister as our own Constitution Committee so graphically and her Cabinet have to make clear the terms of our and splendidly demonstrated. departure that they are seeking. When we know where we are going and how we intend to get there, it defies I am one of those who believes that referendums logic that a decision taken nearly two years ago without are inimical to parliamentary democracy, but they are the facts should be the last word on a decision that will part of our system now and we have had a number of set the course for our country for decades to come. them. But we must also recognise that we are where we Both Parliament and the people must be consulted on are, and I was on the losing side. As a loser, I must try this endgame. Without a vote on the reality of Brexit, to be gracious. But those who won should try to be we will be left with a raw and open wound, not least magnanimous. They should recognise that their margin among the millions of young people who did not vote of victory is no cause for triumphalism. They should for Brexit yet will have to live with the consequences. consider our union—the United Kingdom. They should To tell them that their ship has sailed is a cynical consider that in Scotland, Northern Ireland and London betrayal of the hopes and aspirations of a generation. significant majorities voted to remain. I hope that 1543 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1544 during the passage of this Bill we will hear from Ministers confident that I would be following a speech that on our Front Bench a clearly articulated sense of contained a robust defence of parliamentary democracy. direction and destination. My noble friend Lord Foulkes reminded me that he Before I was turfed off the EU Home Affairs Sub- once described the noble Lord as being a man who Committee for having the temerity to vote against the was made for this place. Having watched the noble Government on amendments almost a year ago, I Lord here and in the other place and having been heard witness after witness come to our committee to privileged to hear him speak, my observation is that he indicate that the success of negotiations would be thinks that this place was made for him. judged by how close the agreement in question came Only yesterday, we witnessed another indefensible to replicating what was being replaced. That is a bit and probably ultimately futile attempt by the Government odd, is it not? That is why I am one of those who feel to deny Parliament access to the information that it that it was not a good negotiating ploy, before the needs to hold them properly to account and simply to negotiations even started, to draw red lines that outlawed do its job. We all already know what the economic certain important things, such as contemplating analyses of the consequences of the only feasible membership of the customs union. As a true Conservative, Brexit deals say and few of us are at all surprised. The I was brought up to believe that one should advocate Government will not be able to defend their position change only if one is convinced that the latter state against the will of the majority in the other place for would be better than the first. long. Eventually these documents will be published— Yesterday, I sat in this Chamber for almost the although they already are. whole debate and I listened to 67 very interesting For months now, every time that they have been speeches. Much was made by the Leavers about the faced with a reasonable request for explanation or predictions of what might happen straight after a vote clarification of the Government’s Brexit objectives, to leave. But as I tried to indicate to my eloquent and Ministers or government spokespeople have refused to alliterative noble friend Lord Ridley, we are still in the give an answer, because apparently that would somehow European Union. Predictions that we read about today undermine the Government’s negotiating position. I are the ones we should perhaps view a little more have been bemused and questioning of my own substantial carefully. negotiating experience and instinctive belief that there It was a bad campaign. There was hyperbole on one is no such negotiating advantage to be had. I feared side and mendacity on the other. As the right reverend that I might be alone in thinking this, because it never Prelate the Bishop of Leeds indicated in a fine speech seemed to be challenged. That was until yesterday, yesterday, there was too much emphasis on economics. when the noble Lord, Lord Higgins, in a few sentences There was no vision. I hope that he does not have the exposed that the emperor has no clothes—the fallacy modern prelates’ aversion to the King James Bible, but of that argument—to the amusement of many Members. I thought that he might have said: “Without vision, the people perish”. Throughout the negotiations, the EU 27 have clearly The visionary element was lacking. Of course, vision shown their collective hand—we are told that a decision and nostalgia are very different things. Brexit is not was made in two minutes the other day—and because about recreating a country that exists only in the of that have maintained a position of dominance over imagination. We are at a crossroads without a compass the UK in the negotiations. As has become obvious, and with squabbling back-seat drivers. It is important the truth is—there are many ways of explaining this—that that the Government indicate what they see as the a deeply divided party in government simply cannot preferred outcome. The Prime Minister must not be answer these important questions because they have cowed and prevented from making speeches by some been unable to formulate a clear, common position. If of her squabbling Cabinet colleagues. you want specific evidence of that, Mrs Merkel revealed We can all recognise what we are, whether we come in a recent informal press conference, to the amusement from England, Scotland, Ireland or Wales. I always of everyone, that every time she meets the Prime say that my identity is English, my nationality is Minister, the Prime Minister asks her to formulate British but my civilisation is European, and I am that position for us, saying, “Make me an offer”. No immensely proud of that. I hope that when we come to wonder we are in such a desperate state. the end of negotiations, after this Bill is long on the I am content to adopt the opening words of many statute book, there will be a coming together, because noble Lords that this Bill is necessary. While it is I fear an implosion within my own party. I am sorry he complex, difficult to interpret and lacking in clarity, it is not here at the moment, but my oldest, longest is necessary that we have a Bill of this nature for friend in politics—and a very dear friend he is too—is exactly the reasons set out in the opening speech from my noble friend Lord Lamont of Lerwick. He has a the noble Baroness the Leader of the House. The Bill reputation for singing in the bath. I cannot challenge should never have come to this House in this state, but him on that, but I hope that when the dust has settled, it is clear from the debate so far that the problems with he and I can sing in unison—it will not be a pretty it cannot be addressed other than by the most detailed sound but it might be an agreeable conclusion—the and robust scrutiny and significant amendment and, song he made so famous, “Je ne regrette rien”. to get to that point, the Bill requires a Second Reading. I also agree that, when we see the terms of the final 11.01 am agreement, a concluding democratic process is required. Lord Browne of Ladyton (Lab): My Lords, it is a My noble friend Lord Adonis argues that that should pleasure to follow the noble Lord, Lord Cormack. be a further referendum. I, too, should like to see a When I saw where I was placed in the order, I was further referendum but, for reasons others have expanded 1545 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1546

[LORD BROWNE OF LADYTON] and UK Governments about where it may be necessary on, I am able, and I thank the noble Lord for this, to to agree common frameworks. This list must exist. If it adopt the position of the noble Lord, Lord Butler, does, will the Minister undertake to let us see it before who, in agreeing with my noble friends Lady Smith we debate these issues? It is the secret to a practical and Lord Mandelson, accepted that this Bill is not the solution to this problem. appropriate vehicle to require a further referendum—by the way, I fear the interpretation of any failed vote 11.08 am that the noble Lord, Lord Cormack, described—while undertaking to support any amendments that propose Baroness Kramer (LD): My Lords, it is intimidating, a further referendum among the options if Parliament frankly, to hear the breadth of experience that has is given a meaningful vote after the conclusion of the been brought to this debate, but I will do my best to negotiations. speak from my much narrower experience. I spent the As a relevant aside, what is “a meaningful vote”? last couple of weeks heavily engaged in the anti-money The proposed withdrawal agreement and implementation laundering part of the Sanctions and Anti-Money Bill may provide a vote on the agreement but, given Laundering Bill. That has very much shaped my whole Article 50, can it be meaningful? If Parliament likes approach to this Bill, because the premise of that the deal and votes for it, the deal is implemented and anti-money laundering part was the powers that currently the UK leaves. If Parliament does not like the deal and go through a democratic process at European level: votes against it, Article 50 operates and on 29 March, the fourth anti-money laundering directive was subject two years after the notification of our intention to to consultation, scrutiny, debates within the European leave, unless there is an agreed extension, the treaties Parliament and votes in Council. The whole thrust of cease to apply and the UK leaves. Does a meaningful that Bill was that those powers should be repatriated vote depend on the flexibility or the reversibility of to the UK, transferred not to this Parliament to treat Article 50? Perhaps the Minister will address that in a similar democratic manner with primary legislation point in winding up. If that is the Government’s but directly to Ministers to make their decisions and position, we should know. enact them simply through regulation. That was an extraordinary shift. I am sure that by now the Minister is clear about the issues that will be demanding his attention in the This House negotiated with the Government. There later stages of our deliberations. Paramount among were people anxious about the issue, led by the Law them is the imperative that there must never, ever be a Lords—or rather our specialists in constitutional law, hard border between Northern Ireland and the Republic such as the noble and learned Lord, Lord Judge—but of Ireland. To achieve that, Northern Ireland and the it was much broader than that. The Government made Republic must be in the same customs union. The significant amendments, but it took two votes in this stakes could not be higher. I trust that the Minister House to take out of that Bill the clauses that gave will address this issue and make clear that that will Ministers the power to create criminal offences and never happen. sentences—in one part of the Bill with imprisonment for up to 10 years, in the other with imprisonment for In the limited time available, I want to engage just up to two years—by regulation alone. one aspect of an issue that has already been discussed at some length: the devolution provisions. The political I do not know how the Government will deal with deficiencies of these provisions were accurately highlighted those issues when that Bill goes to the other place, but by the noble Lord, Lord Campbell, who said that they when we read the European Union (Withdrawal) Bill would be a recruiting sergeant for those in Scotland and we hear the Government say that they will use who seek to advance their independence agenda by their Henry VIII powers in very narrow ways, largely blaming London for everything. At a time when the for technicalities, we recognise exactly the language Scottish electorate are minded to make the nationalists that we heard during the debates on the Sanctions and accountable for their failures, this is an unnecessary Anti-Money Laundering Bill, which in practice, in the and self-inflicted wound. The constitutional and legal eyes of almost everyone in this House, had a dramatically deficiencies were exposed forensically in an important wide scope. In the case of that Bill, and I think this is contribution by the noble and learned Lord, Lord illustrative, it was not just to achieve some immediate Hope. In her opening speech, the Leader of the House transposition of powers from Europe to the UK; the promised that the Government would publish an analysis new system for exercising powers over anti-money shortly to show the specific policy areas where EU law laundering policy and frameworks was to be in perpetuity. intersects with devolved competence and where the You can imagine that I take very seriously that part Government will require a UK-wide legislative framework. of Clause 9 in which the Government seek powers to In addition, she reiterated the Government’scommitment change any piece of primary legislation, including the to bring forward amendments to Clause 11. EU withdrawal Bill itself, and any of the limitations In an earlier debate in this House on these issues, and constraints within it. It is with that hat on and my noble friend Lord McConnell proposed a practical with that concern that I will come to the Committee solution to this problem based on good faith negotiations. stage. I will be fighting particularly the Henry VIII Negotiations are apparently ongoing, but the poker powers to levy taxes, fees and charges, but I am sure game continues. Yesterday, in a meeting with Michael that this House will tackle the issue far more broadly Clancy, the Law Society of Scotland’s law reform and recognise the significance of doing so. director, he told me that he had analysed, over three In her opening speech, the noble Baroness, Lady months, the 111 powers in the list prepared by the Evans, talked about the importance of giving certainty. Government to inform discussion between the Scottish Who could disagree with that? It is critical. To me, 1547 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1548 though, certainty would mean that we knew what the inside Europe in some form or other. As the noble Government’s plans were for the outcome of Brexit. Lord, Lord Patten, and others made clear, this major The financial services sector,with which I am extensively decision is all about one party and not about the engaged, has been denied even a position paper to whole country. I see Brexit as a costly and desperate outline what the Government’s preferred end position scramble to retain all of the undoubted advantages of would be and to provide some sort of structure. That the EU without having to sit around the table talking industry is part of the backbone of our economy. about them. Monsieur Macron was right: we are having We understand that there will be a transition period, our cake and eating it, but we are also getting bad largely a standstill, and that is welcome, but it is vital indigestion. that individuals and businesses know now what it is The country now divides into three: the Remainers, meant to be a transition to. I talked last week to an the Brexiteers and those, like me, who are still asking, inshore fisherman in Northern Ireland. He has to “How do we get out of this mess?”. The human cost of decide now whether to sell his boat because, following Brexit is undeniable: just look at the loss of NHS staff Brexit, all the good inshore fishing territories will be in besides all the forecast effects on education, culture southern Ireland and, if he does not sell his boat now, and the economy. But there may yet be a way out, in a year or two it may be worth nothing. I talked to an short of complete withdrawal and without a second architect, who told me that a Dutch client would like referendum. to engage him in a long-term development in the Netherlands. Will his qualifications be recognised? Few of us want to sabotage the Bill. It is a necessary Will he be able to deliver his services from a UK base? Bill and the debate is not about the Government’s He does not know, but he must decide now. A US plans—since on many things they have no plans. We company is seeking to do a five-year interest rate swap must, and I am sure that we will, vote to retain all of that it would normally clear through the London our current EU-derived legislation. But along the way Clearing House, but will that be a valid swap in five a few things stand out so starkly that they have to be years’time or will the CCP with LCH be an unauthorised mentioned, and they have been. We still do not know body, and will the company be in significant trouble where we are going. Worse than that, on some issues with the regulatory authorities in the US? These are we are going into a chasm or void—words used by the real decisions. Little companies, individuals and big noble Lord, Lord Duncan, last week. But he also companies alike have to be able to make decisions and quoted Burns: act on contingency plans. For that, they must have “Oh let us not, like snarling curs, clarity from the Government. In wrangling be divided”. I realise that in a politically riven Government The darkest hole is in the sea between Ireland and fudge is seen to have a great advantage, but we are at the United Kingdom, something equivalent to the the point where that can be sustained no longer. I hope Corryvrechan. The Government’sposition on the border that the Government will see that certainty should issue is muddy because they are trying to reconcile the apply not just to the measures in the Bill but to those irreconcilable between the Irish and Northern Irish broader issues as well. We must take the opportunity positions. I urge the Government to show their hand to use the Bill to make sure that people will be able to soon and to be guided, as the noble Baroness, Lady look at that final deal. The possible impacts on individuals, O’Neill, said, by the Belfast principles, since as my companies and people’s daily lives are across such a noble friend Lord Eames and others said last week, broad spectrum that surely, in a democracy, the people they cannot leave the people in such uncertainty. should have the final say. The people of Gibraltar share some of the uncertainty felt in Northern Ireland. How could the Government 11.15 am get so close to the cliff edge as to cause anxiety and The Earl of Sandwich (CB): My Lords, en principe I even worse, if the people of Gibraltar are not given am against repealing the 1972 Act. I have a personal proper guarantees? Then, there is devolution. Last reason for this. My father was the 1960s equivalent of week’s debate showed clearly that the devolved a UKIP leader. He campaigned against Europe and it Administrations were not properly consulted and that irritates me that he has somehow posthumously won amendments in the Commons were never discussed. by means of an advisory referendum—referenced by There are still many UK issues to resolve in the UK the noble Lord, Lord Higgins—that not did not even before we go back to the EU negotiating table. express the will of the majority of registered voters. Constitutional experts are still worried about the Apart from that—I will get over it—I am unashamedly exceptional use of delegated powers and whether the European. I have lived and worked in Europe and my Government should assign a single status to retained degree was in European languages. I have Italian EU direct legislation. My noble friend Lord Kakkar in-laws. I want to preserve peace in Europe. I support showed how much damage there will be to science enlargement of Europe. I refuse to go into choppy, from any uncertainties that continue through the uncharted waters with a salt-caked smoke stack. I do transition. Children’scharities and lawyers are concerned not think that the Government have got it right. about the exclusion of the Charter of Fundamental However, I am also an independent. I sympathise Rights. Other people are in considerable doubt about with the Lib Dems, but I also understand some of the future references to rulings of the ECJ. The Greens fears of Brexiteers about regulation, the eurozone, and many others say that environmental law is not closer union and immigration. Those are genuine fears. being fully translated into UK law. We heard about But I would prefer that these vast issues were tackled that from the noble Baroness, Lady Featherstone. 1549 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1550

[THE EARL OF SANDWICH] I turn to a particular area of interest of mine—financial I shall be supporting amendments on all these issues services. In the other place much of the debate was unless the Government put down their own to meet about the use, or overuse, of delegated powers—the these concerns. so-called Henry VIII clause. I must take issue with I feel confident that this Parliament will now have a much of what was said. Lamenting the use of delegated say on the final deal although, if it rejects the deal, powers is a common tool in all opposition toolboxes. there will have to be further renegotiation. The EU When they have run out of points of principle, they knows this and would like us to remain in Europe. I resort to points of process. Leaving that aside, much believe it is not impossible that, in the event of rejection, of the criticism was largely fallacious. As the EU we shall have the opportunity to remain as a member committee set out, in financial services in particular, under Article 50, but on new terms. If not, then the EU laws follow the Lamfalussy framework. Reading Government will have to look for some intermediate the debate in the other place, it is almost as if many status, alongside the single market. No one seems able want even the lowest level of content included in UK to forecast what that might be or even whether such a primary legislation. Yet, as the Investment Association status exists. has pointed out, in financial services, at least, much of EU law is better handled here by the regulator, not to In short, we have got ourselves into a mess. I doubt circumvent democracy but for reasons of efficacy and if any party, or any organisation outside Brussels, can practicality. It is simply about appropriate levels of pull us out of it but I hope and am confident that this detail. As the renowned EU legal expert Simon Gleeson debate will have made a contribution. pointed out to the EU Committee, “the Bill will perpetuate one of the main defects of the current 11.21 am EU position, namely that too much detail is in legislation and is difficult to update”. Lord Leigh of Hurley (Con): My Lords, it is a There may well be much to be improved in this Bill, privilege to speak in what has been described as a but cramming it full of regulatory issues better handled historic debate on a technical Bill. In the time I have, I in secondary legislation and regulatory guidance and will constrain myself to addressing just a few points. enforcement should not be part of that process. The first concerns the referendum vote. I noted I add my voice to those who have warned against a with interest the passage of the Bill in the other place second referendum. I appreciate that its advocates are and the remarks by the shadow Brexit Secretary,repeating saying “not now” but they are pushing us down a very demands for a meaningful vote on the Brexit deal. I dangerous road. If the EU detected that there would simply draw attention to the meaningful vote we had be a second referendum, can your Lordships imagine already in June 2016. It is now the job of Parliament its negotiating position? It would make an agreement to scrutinise, not to oppose this necessary legislation. that much harder. Is that the agenda of those calling Whether one voted to leave or remain, reconciling the for a second referendum? I hope not, and that those result with a position that leaves the UK not in control who might be talking down our negotiating position of its borders, courts and fiscal contributions to the recognise that. There is no real prospect of holding a EU would feel very jarring. This applies as much to referendum without causing huge anguish and pain all Parliament seeking to thwart Brexit by voting down over again between friends, parties and even families the European Union (Withdrawal) Bill, as it does to up and down the country in what would inevitably be those siren voices now calling for a second referendum. a difficult campaign full of bias and hate. As Brenda As my noble friend Lord Astor said, the people have of Bristol famously said: “What? Not another one!”. spoken and it is the job of this House and the other place to make it work as smoothly as possible. If the shadow Brexit Secretary wishes to continue his search 11.26 am for meaning, then he should look no further than improving this Bill. Baroness Whitaker (Lab): My Lords, there is much in the Bill that merits deep and extensive scrutiny, but I commend some of what the chairman of the at this stage I simply want to signal alarm at the Brexit committee has to say, particularly as he reminds treatment of human rights. “Human rights” is a legal us that this legislation is necessary. We must pay heed term for what we might otherwise think of as respect to the Constitution Committee, which describes the for individuals and recognition of their human dignity. Bill as deeply flawed. We must seek to improve it to the We have acknowledged its importance in devising the committee’s satisfaction where we can. powers of the state since our earliest times, and we As this is a technical Bill, I offer some technical have pursued it more or less consistently in our long observations. In the other place, MPs raised the participation in international and European law-making. uncomfortable question of pre-exit disputes, many of So it is disturbing to see that, despite valiant efforts which arose several years ago and which may now not in the other place on all sides to retain the Charter of go to the ECJ. In my opinion, they clearly ought to, as Fundamental Rights, the Government have insisted they arose under the old regime.The Francovich principle, that it be discarded from our law. It is true that when which has been raised in this House before, has been the Labour Government, in the person of my noble removed from the Bill. I hope my noble friend the and learned friend Lord Goldsmith, negotiated this Minister will reconsider this. I am aware of instances important instrument, it did not at that time confer where it would lead to a very unfair result and deprive any new rights. What it did was codify existing fights genuine claimants of going to the EU court. I am and provide for actual remedies against breaches. Our happy to brief the Minister on this if required. Human Rights Act provides only for a declaration of 1551 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1552 incompatibility if our law breaches the European will still apply to EU-derived law and that the right to Convention on Human Rights. Under the charter, damages which result from the Government breaching damages may be awarded. How much more useful is EU law will be protected. If the Government set their this to the wronged citizen than a declaration, even if face against entrenched law, this could be done through eventually, that results in a change in the law? What adding provisions to the Human Rights Act 1998. are the Government going to do to put this right? At least as important is the development of the 11.31 am usefulness of the charter since we helped to bring it Baroness Humphreys (LD): My Lords, like many into being. There are too many areas where the charter other noble Lords I am disappointed that the EU now goes beyond the convention, and thus our own withdrawal Bill has come to this House almost unamended Human Rights Act, to enumerate in the time available. by the House of Commons and that the legislative The free-standing right to equality, a right to vocational attempts to retain and even increase the power of the education and some of the protections for children are Executive, which will affect Wales so significantly, among the most telling. Case law has brought new have shamefully failed to be successfully challenged by safeguards in respect of data protection, for instance, Members in the other place. including the basis for the right to be forgotten. These The inclusion of Clause 11 in this Bill by the too would be lost under the Bill. There are also general Government was surely a case of imperial arrogance—or principles under the charter which we would lose as a incompetence. Having listened to the Minister say at basis for challenging injustice under retained EU law, the end of last Thursday’s devolution debate that the such as proportionality—unless, the Government now Government were working on, but struggling to find, say, the challenge was brought within three months of the correct wording for their amendments, I suspect exit, which is surely a paltry concession. the latter is nearer the mark. I look forward to seeing We should also be very concerned about the these amendments in Committee and taking part in vulnerability of our rights to the regulation-making the debates that will follow. power in the Bill. Is it not manifestly unjust and The Prime Minister’s decision to announce, so soon unparliamentary to subject fundamental rights to after the referendum and so early in the withdrawal secondary legislation? How can we accept the prospect process, that we would also be leaving the single market of a Government easily dismantling the enhanced and customs union was, in my view, a mistake—a red protection given to the environment, consumers, health line that will have a real impact on Wales. The rejection and safety and the rights of workers not to be exploited? in the other place of the amendments to include them We need a strengthened scrutiny procedure beyond the in the Bill is disappointing. If a similar amendment is Government’s new add-on of an EU SI Committee, proposed in Committee, I will support it. and stronger than the concession of declarations Noble Lords already understand the advantages of concerning equality. the single market and customs union to Wales. We It is notable that the Government’s impact statement trade with our nearest neighbours. We have access to a omits any consideration of the impact of the diminution market of 500 million people. That trade is tariff free of rights and redress for their breach that follows from and the market accepts over two-thirds of our exports. discarding the charter and from the use of secondary Its importance to the Welsh economy has been recognised legislation. Will the Minister commission a fresh study by the Welsh Labour Government, who have called for to remedy this deficiency? Of course, if we had a “free and unfettered access” to both the single market written constitution many of these fears could be and customs union, a call that unfortunately seems to allayed. The Supreme Court would then have a basis be unheeded by the Labour leadership in Westminster. to put a stop to any future legislation curtailing the I wish the noble Lord, Lord Liddle, every bit of luck in freedoms we have achieved, for instance in equality trying to persuade his colleagues. and working conditions. This is quite apart from the The much maligned—by those who support Brexit— other advantage that it would be taught in schools so free movement of people and goods has been a boon that all citizens and, for that matter, would-be citizens to companies such as Airbus, which employs 7,000 people could know exactly what our values concerning justice, in Broughton in north-east Wales. A new customs rights and responsibilities meant for them. bureaucracy and reduced employee mobility could The Government have recognised the anxiety expressed damage long-term investment there and accelerate a on all sides about their treatment of human rights in shift to Asia where China, according to representatives this Bill in their Right by Right Analysis. I welcome the of the company, is already, undertaking to, “knocking at the door as a result of the situation that we’re in in this country”. “look again at some of the technical detail about how the Bill deals with the general principles of EU law … and how some Our situation is characterised by a deep uncertainty challenges based on the general principles might continue after about the future direction of the UK which is fuelled exit”. almost daily by the contradictory and confusing messages coming from around the Cabinet table. Farmers seek This confirms, however, that all the charter rights will certainty that they will not be priced out of their not be carried over after Brexit. That is what we need European markets and that the funding that they need to fight for. to plan for their farms’ future will be available. Finally, there are many amendments we ought to Manufacturers need confidence to invest to grow their discuss in Committee. I hope that among them will be businesses, and communities are beginning to understand a provision that the Charter of Fundamental Rights and lament the end of structural funding. 1553 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1554

[BARONESS HUMPHREYS] say, by the British Government; I do not want people Workers in Holyhead on Anglesey would be grateful to get the idea that I am some sort of Russian spy. for certainty on the question of the Irish border. The During my three-year period in Moscow I developed a fact that talks with Michel Barnier have moved onto deep affection and respect for the Russian people with the second phase has fooled none of us; the fudge over whom I lived and worked. I am not anti-Russian. At the border seems to have been a charitable device by the same time, we should not be naive about interference Mr Barnier’s team to give the Prime Minister some by other countries in our precious democratic processes. credibility. This most difficult question seems to have Governments need to take steps to protect the British been placed in the “too mind-blowing for now” box people from those influences in the future. Whatever and shelved. Government we have in place, it is vital that work is Our place in Europe and our place within the single done to interfere with this process. What is the point of market and customs union have led to Holyhead another referendum, or an election, if Russia may developing into the large port that it is today. However, determine the outcome? the recent announcement that from April, Brittany We know that Russia has put massive resources Ferries will be running a ferry service for cars and into developing social media infiltration tools. As your freight from Cork directly to the north of Spain, so Lordships know, my noble friend Lady Lane-Fox is on “avoiding the land bridge”between Ireland and Europe, the Twitter board and knows a thing or two about rings alarms in North Wales. Potential job losses in these matters. She is aware of such Russian investments. one of the poorest areas of the UK will be devastating. Russia would make these investments only in order to Finally, on a personal note, I want to say a few use the tools against the West. Of course, Brexit will words about the referendum result and introduce some damage Britain and the rest of Europe: it is a pretty facts and figures about the influence of identity on brilliant stroke by Mr Putin. We know for a fact that in people’s voting choices in that referendum. It has been the Trump presidential campaign, 126 million Americans claimed, in one national newspaper in particular, that received personally tailored Facebook fake news.Someone the vote to leave the EU was an English national revolt closely involved in the digital economy—not my noble achieved with the acquiescence of the Welsh. Research friend Lady Lane-Fox—takes the view that it is almost carried out by the British electoral survey points to certain that Russia used similar social media methods another possible scenario. to influence the result of the Brexit campaign. This is, To begin with, an important factor to note is that however, very difficult to prove. When I contacted the about one-third of the population of Wales were born Electoral Commission last summer, it was investigating in England. The survey data shows that 60% of those Russian involvement in the Brexit referendum. At that living in Wales who identified as both strongly English time I was told by an investigator working closely with and strongly British voted to leave. On the other hand, the FBI that Russian money funded the Brexit of those who felt strongly Welsh but not strongly campaign—not totally, but substantially—and that it British 71% voted to remain. Of those fluent Welsh was the link between the Brexit and Trump campaigns. speakers who strongly identified as Welsh, not British, In fact, I have been told rather more than I feel able to a massive 84% voted to remain. So as a Welsh-speaking, say today. strongly Welsh-identifying Member of your Lordships’ Suffice it to say that already, more people are against House, I make the gentle request that in future these Brexit than support it, as other noble Lords have said. factors are taken into consideration when apportioning If sufficient information comes to light about Russian blame or even credit for Brexit. The Leave vote may distribution through Facebook of misinformation tailored have been won with the help of the majority of those to local communities during our referendum, we can who live in Wales, but certainly not with the aid or expect that a growing number of the British people acquiescence of the majority of the Welsh. will want Parliament to intervene. There is a risk that this information may not come to light in time for 11.38 am 2018. For a start, Facebook is a closed dataset. As Baroness Meacher (CB): My Lords, it is humbling your Lordships will know,the information on a Facebook to speak in this debate after so many excellent speeches. page is available only to “friends” of the user. Also, I want to focus on a somewhat different issue from Facebook has 2 billion monthly users; imagine the those raised by most people here, the issue of Russian task of going through that material, albeit electronically, interference in the Brexit referendum campaign, and to find the information. It may, therefore, not be to reinforce the argument for a meaningful vote or possible for Facebook to get hold of the information votes in Parliament. The Dominic Grieve amendment in time. It has, however, employed thousands of staff is indeed a valuable start and it must not be lost, but it to do just this job. The question is whether they can is essential that there are additional amendments to find out what happened and, if so, when. ensure that parliamentary sovereignty really rules in I have two questions for the Minister; one that I this process. Clearly, Parliament cannot seek to interfere hope he or she can answer, but the other may be more with the referendum result unless the British people difficult. First, is the Minister aware whether or not can put the misinformation behind them and come to MI6 is investigating Russian involvement in the Brexit understand, as they are beginning to, the reality of the campaign using social media infiltration tools and risks to their jobs and standard of living presented by funding? Secondly, has MI6 commissioned work to Brexit. develop tools to combat the Russian equipment to I will talk about Russian involvement in the Brexit prevent interference in our referenda and elections referendum campaign as someone who lived in Moscow in future? The British people and Parliament need and worked within a Russian ministry—funded, I should this information. 1555 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1556

As well as amendments on a meaningful vote for ‘How can these people forget so soon where nationalism leads Parliament, I will want to support amendments that you?’”—[Official Report, 30/1/18; col. 1521.] relate to the charter of human rights. However, I The innuendo is clear. I could turn the whole thing on cannot overemphasise the importance of parliamentary its head and say that World War II, for instance, was sovereignty and meaningful votes for Parliament. brought to a halt and peace was established by the nation state against the pan-European movement led by Germany. That absolutely turns on its head an 11.43 am argument that is constantly used against people such Lord Spicer (Con): My Lords, it is a great pleasure as myself and Eurosceptics, and quite wrongly so. to follow the speech of the noble Baroness, Lady Meacher. I remember well partnering her late husband in tennis in West Virginia when we played against the 11.49 am American Senate. He was, certainly in private, a very Baroness Mallalieu (Lab): My Lords, in common charming man. I also agree with her about the dangers with just under 70% of those who voted in the area of Russia, but I am not going to talk about that now. from which I come, in the referendum I voted to leave It is clear from this debate that your Lordships’ the EU. It appeared to me, for many of the reasons House is not exactly rabidly Eurosceptic. I am, though, that the noble Lord, Lord Spicer, has just given, that and perhaps I owe the House some explanation of political power had moved into the hands of an unelected, that. I start with what has become the customary over-regulatory bureaucracy, which was out of political homage to the speech of the right reverend Prelate the control and had no willingness or ability to reform. Bishop of Leeds. He is of course right that economics Further, it was heading in the direction of a single is not the only matter affecting this debate, although state for which it has no mandate and, in this country they are not completely unimportant or irrelevant. at least, very little support. I therefore support the Bill. When you are dealing with a protectionist trade bloc, But I am acutely aware that the referendum divided which the European Union is, it is bound to have members of the same political parties, close friends ultimately a negative effect on your trade and economy. and, as I know personally, family members, some of There is certainly a read-across there. whom cannot or will not accept the result, like some Much more important, and the reason why I think Members of this House. we should get out of the European Union, is democracy. I have either listened to or read every speech that The European Union is undemocratic for two reasons. has been made in this debate so far, and I have heard It does not have a mechanism for true democracy, powerful speeches from noble Lords with far greater which requires a direct relationship between the electorate knowledge and experience of the EU and its workings and the Government. The electorate chooses a party, of government, law, finance and industry than I have. preferably in private, and votes it in. There is such a I have heard powerful speeches from powerful people. connection between the electorate and the Government But, for me, louder than all of their arguments is the that the electors, having elected their Government, are voice of Colonel Rainsborough, one of the Levellers, willing to pay allegiance to them. There is a synergy speaking for one man, one vote, in 1647. He said: about the whole thing. In Europe, the matter is aggravated by the fact that the laws are made on the whole by the “the poorest he that is in England hath a life to live, as the greatest he”. European court, which is undemocratic and relies on the acquis communautaire for its inspiration. The How often have I listened in this House to noble Lords acquis is quite clear that it requires the court to make speaking of the need to encourage people to register judgments in one direction, towards a federal state of and vote. The usual response from those who do not Europe, that is irreversible. is, “My vote doesn’t count”, and they are usually right, especially in constituencies with large majorities. Some people say that this process can be reformed. In the referendum, every vote did count. People voted In the foreseeable future at least, that is highly unlikely. in all-time record numbers. They were told, among Take, for example, Britain. If we were to go back into others by the Prime Minister of the day, that that vote the European Union, it is absolutely unimaginable was a binding one and that it would be acted on. So, that the court would not insist that sterling would be for me, the Bill is about giving effect to democracy. joined to the single currency, and quite rightly so. You Being in Berlin recently made me reflect, as other cannot have a single market for ever without a single noble Lords have during the course of this debate, on currency. That would be the loss of Britain’s freedom, the political history of the last world war. When the which is involved in the sovereignty of Parliament and governing elite stop listening to the people, the people in no one Parliament binding another. That would just are drawn to and eventually turn to extremism. That is go. The trend in that case would be anti-democratic so a lesson that we must not forget. far as this country is concerned. I would like to refer to a speech made yesterday by The Bill, passed by the elected House is, as most the noble Lord, Lord Winston. It is something that noble Lords have said, far from perfect. The law-making has troubled me quite a lot about the attack that is powers of Ministers need to be defined and restricted made on people who think, like I do, that the nation on the face of the Bill. There needs to be clarification state is the best unit of democracy. I will read one of the status of EU legislation to create legal certainty, paragraph from it. He said that, and there needs to be much clearer devolution of “Andrea Sella talks about a maternal ancestor. He is not Jewish powers to Scotland, Northern Ireland and Wales. I but his ancestor was. Apparently she called him early in the will support the amendments that seek to improve the morning when the result of the referendum became clear. She Bill, but not those designed to put a spanner in the said, her voice choking with emotion: works. I hope that the noble Lord, Lord Adonis, 1557 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1558

[BARONESS MALLALIEU] Are these forecasters seriously suggesting that EU will not press his amendment. We always knew that trade would halve if their 5% reduction in GDP the negotiations for our exit would be difficult. Without occurs if we choose the EFTA route? It is simply not our contribution to the budget, the EU is insolvent realistic. and there are other member states with at least very The case for remaining was set out. The Government strong reservations about membership. The Commission even spent £9 million of our money doing just that. was always going to make life difficult, even at its own Everything we have seen since the referendum has expense, and I am afraid it is further encouraged by justified our decision. There is general dissatisfaction those who tell them, hopefully, that Brexit may not throughout the EU with the present arrangements. happen. Incentives are given to big businesses to locate in I think that we can all agree that the biggest threat Luxembourg, contrary to the rules. Then there is the to our economy is uncertainty and to be plunged once situation in Poland; no stable government in Germany; again into another divisive contest of a second referendum, upcoming elections in Italy; the state of the European with all the acrimonious campaigning again, would be banking system; and even President Macron says that bad for our economy,our national unity,and democracy. the French—how wise—might vote to leave if given a As I recall, we had a general election only a short time referendum. ago. The party that campaigned to stay in was as good as annihilated, except of course in this House. My Quite why the EU is so desperate for our cash, I do party, which did a great deal better than expected, not know. With a budget of some ¤150 billion, surely campaigned on a manifesto to leave both the single it can be cut by 10% or 15%? One has to ask how the market and the customs union and, I am glad to say, proposed sum we are thinking of paying the EU is no repeat referendum. I am particularly grateful for arrived at. Yes, we should pay for commitments entered the restrained and reasonable way in which my noble into when we are a member, but why should we pay for friend Lady Smith of Basildon opened on behalf of access? Surely it should be paying us. It has the trade these Benches. The prevailing message that I get from surplus, not the UK. people who voted on both sides of the referendum I am somewhat nervous about how the Government from outside this House is, “Just get on with it”. Let us will use the so-called Henry VIII powers. For many do just that. years, we have had to accept all regulations and laws from Brussels with no possibility of rejection. I hope 11.54 am we can trust our Government more than the unelected bureaucrats in the EU. As was mentioned yesterday, Lord Stevens of Ludgate (UKIP): My Lords, I am let us be careful of having a Corbyn Government. grateful that I have not yet been annihilated. It is disappointing that those who lost in the referendum I wish our negotiators well, but the signs are not are still demanding another one. It does not help for a auspicious. We are allowing the EU to dictate the government Minister to describe certain Eurosceptics agenda. Normally, an agenda is agreed between the as “swivel-eyed”. I had hoped that we had got past parties. One gets the impression that we are going into that level of debate. these meetings with no clear objective other than to In a high turnout, the people voted to leave by a listen to the other side and to try to compromise. majority of 1.5 million—huge in electoral terms. In Negotiations are better if both sides feel that they have the last election, if 40,000 voters in the most marginal won the argument. So far, we have been the givers. We Labour seats had, instead of voting Labour, voted for need to get back our territorial waters and our ability the runner-up, Labour would have lost 40 seats. It was to do trade deals, spend our own money and make our that close. Let us suppose that the leavers were to lose own laws, and we need to keep Gibraltar and keep an another referendum—unlikely, in my view—then we open border in Ireland. However, how one can get would have every right to demand a further, deciding 27 countries, all with their own agendas, to agree to referendum. Let us respect the people’s wishes. We are this I do not know, unless we give a lot away. We must not the EU, which asks members to vote again when it adopt a harder line in the negotiations. The EU has does not like the result. much more to lose than we do. We have the world to We cannot argue that the remainers did not fire expand into. every barrel, from Mr Cameron’s “World War Three” Any implementation period must be as short as to Mr Obama’s “back of the queue”. He was sadly so possible. Two years is more than enough; otherwise, it ill informed that he did not know that there was a will be dragged out for ever. We must not be subject to queue of one—the EU. President Hollande, Madame any more EU laws or regulations during this period. Lagarde and every other leader you can think of all Financial services should be included in any deal if warned of economic disaster. Even the poor old CBI, possible, but let us not panic if they are not. We are the which opposed the ERM, was in favour of joining the world’s financial centre, and the EU business through euro and is partly financed by the EU, is still at it. us is a small percentage and not that critical. Already The Bank of England has got it wrong yet again. The many of those threatening to move staff away are governor is still muttering that the GNP would be scaling down their estimates—Deutsche Bank, for 1% higher if there had been no vote to leave. How on example—and the governor of the Bank of France earth he works that out is quite beyond me. As for the has stated that the numbers leaving are exaggerated. latest leaked economic forecast, it must have been leaked Even the chief executive of Barclays is telling us to be by remainers. In 2005, UK trade with the EU was prepared to sacrifice access to the single European 55% of the total. It is now 45%. If present trends continue, market after Brexit if it means gaining control of our it will be 35% in 10 years’ time, or 10% of GDP. own financial rules. 1559 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1560

The more that we argue here, the weaker we make confrontation. It is particularly important at this time, the Government’s negotiating position. Should we not when there is no devolved Administration in Northern be implementing the people’s vote, unelected as we Ireland. But I must emphasise that, with all the friendliness are, pulling together and presenting a united front? By and mutual understanding in this group, Ireland is all means improve the Bill before us, but let us not totally committed to the European Union. In the frustrate it. United Kingdom’s future dealings with Ireland over Brexit, friendly and constructive though we hope they 12.01 pm will be, it is vital that this is borne in mind. Viscount Bridgeman (Con): My Lords, I think plenty of your Lordships will share the view that the one 12.05 pm country we would not wish to be disadvantaged as a result of Brexit is Ireland. However, Ireland is already Baroness Blackstone (Lab): My Lords, I greatly suffering: beef exports have fallen as a result of the regret the fact that we are debating this Bill, as I collapse of sterling. Sadly, it is Ireland that is most believe that we should remain as a member of the likely to suffer in the coming negotiations. European Union. I did not think it was right to have a referendum about an issue of such complexity. Indeed, Had there been no progress with Ireland and Northern in a parliamentary democracy most referenda are Ireland, we could well not be having this debate at all, inappropriate. or at least in this context. Noble Lords will appreciate that in the early stages of the negotiations last year the For many years we sought to be a member of the EU adopted an inflexible approach: no deal between EEC, as it then was. Having joined, it brought us many individual members and the UK. It was described benefits, the greatest of which has been our membership dismissively by Charles Moore in the Daily Telegraph of the single market. Our economy has flourished so as Euro-theology. Talks were indeed in danger of that we have enjoyed higher growth than before and a stalling and stage two was in danger. With the strong position relative to other OECD countries. The determination on all sides to have a soft border, how decision to leave the EU is already jeopardising this, as could regulatory bodies be shared with the EU on the the Governor of the Bank of England and many one hand while Northern Ireland was placed apart others have made clear. Yet a former senior Minister from the rest of the UK on the other? This has been who supports Brexit was heard on the “Today” stated by many speakers but I refer particularly to the programme yesterday in denial about Government speech yesterday by the noble Lord, Lord Patten of projections of an economic downturn under each of Barnes. the three models of possible outcomes. What he said was shockingly misleading. I hope that when the Minister Thanks to the constructive efforts by UK, Ireland replies he will confirm that impact assessments will be and Northern Ireland officials and the Barnier team, a made available to Parliament. I hope too that there form of words was agreed that I suggest is a drafting will be no more disgraceful attacks on civil servants masterpiece. I am going to take the opportunity of like the one we heard in another place from the reading it: Minister in the Brexit department. If these go on we “In the absence of agreed solutions, as set out in the previous will have to start a defence league for officials. paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the It is not only because of the economic consequences United Kingdom, unless, consistent with the 1998 Agreement, the of leaving the EU that the UK would be better off Northern Ireland Executive and Assembly agree that distinct inside than outside. There are many advantages in arrangements are appropriate for Northern Ireland. In all being part of a political bloc whose members share circumstances, the United Kingdom will continue to ensure the our commitment to the rule of law,democratic institutions, same unfettered access for Northern Ireland’s businesses to the freedom of speech and human rights. In a troubled whole of the United Kingdom internal market”. world where there are powerful countries that respect If it is not entirely clear, perhaps that is intended. none of these, there is great benefit in working together Naturally, the type of confectionery beginning with in Europe to secure peace and justice in the world. We “f” shall not pass my lips; I would call it constructive should not forget the views of young people: they vagueness. voted overwhelmingly in favour of remaining in the The Prime Minister and the Taoiseach have both EU. They are now puzzled about what constitutes made statesmanlike speeches, the Taoiseach in particular government policy. This is hardly surprising since the emphasising the bonds between the two countries. It Government themselves have no vision or clarity about has become known as the 8 December agreement and where they are going. Above all, young people fear a my right honourable friend Karen Bradley, the new hard Brexit and that we are abandoning the values of Secretary of State, called it pragmatic, which is a very tolerance and openness that they hold dear. Old people, good description. I take this opportunity to wish who voted in large numbers to leave, have most of James Brokenshire a speedy return to health; he has their lives behind them. Young people have most of contributed so much to this early debate. So the logjam their lives before them: we must not let them down. To has been broken and we can move to stage two. pass the Bill unamended would let them down. I am a member of the British-Irish Parliamentary We must ensure the sovereignty of Parliament and Assembly,formed as a meeting group for Back-Benchers prevent a constitutional outrage. The House can play of both jurisdictions, and we have come a long way a crucial role in protecting our constitution by seeking since the troubled times of the 1990s. Now it is a to prevent an over-powerful Executive bypassing proper constructive and friendly group where we can agree to parliamentary scrutiny. Legal expertise in amending differ on Brexit, with frankness, without rancour or the Bill’s Henry VIII clauses will be invaluable. 1561 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1562

[BARONESS BLACKSTONE] paragraphs in the Constitution Committee’s Report— The Government’s decision not to convert the EU paragraphs 40 to 52—explain the fundamental flaw at Charter of Fundamental Rights into UK law means the heart of this Bill: the failure to attribute a single the protection of human rights will be weakened. legal status to all retained EU law. It is that failure that More than 20 human rights organisations, including produces many of the ambiguities and confusions and the Equality and Human Rights Commission, recently the convoluted legal drafting running through the Bill. published a letter stating that losing the charter creates But that flaw is not the only problem. If we leave a human rights hole. The protection of the charter this confused and confusing Bill in anything like its should be retained. Without it, there are risks to present state it represents a clear and present danger employment rights, consumer protection, the protection to parliamentary sovereignty, to the entrenched rights of the environment and the rights of children. and protections that UK citizens have under the existing I also want to comment on the absurd decision, blend of EU and UK law, and to the devolution forced by the hard Brexit faction in the Government settlements with Scotland, Wales and Northern Ireland, and the Conservative Party, to have a precise date for as so many speakers have identified. Clause 6 creates leaving the EU next March. This comes before many obscurity and uncertainty around how the courts are of the vital decisions that need to be made about the to use EU case law after Brexit. The Bill casually consequences of Brexit have been properly discussed dumps the European Charter of Fundamental Rights and negotiated. I hope the Government will think with no clear justification, as the Constitution Committee again and consider leaving only after the transitional points out. The scrutiny arrangements for delegated period, rather than before it. powers remain inadequate, without a proper role for The calamitous decision to leave the EU has distorted this House. As others, particularly the noble Lord, the work of Whitehall and Westminster,leaving insufficient Lord Hain, have made clear,the Good Friday agreement time to address many urgent issues where change and remains in jeopardy from the Government’s fantasy reform are needed, whether in health and social care, that you can have a frictionless border in Ireland education, housing and the environment, or the reduction without a common customs union. of poverty. Moreover, this displacement of effort is Fortunately, the Constitution Committee’s report magnified by the loss of many benefits brought to us provides analysis and solutions. Paragraph 52 proposes in all these policy areas by our membership of the a straightforward solution to the fundamental flaw, European Union. Leaving will make it exceedingly namely that the legal status that should be applied to difficult to retain many—if not any—of these benefits. all retained direct EU law for all purposes should be However, I end by saying that our greatest priority the status of domestic primary legislation. This approach must be to fight against a hard Brexit and the horrors would secure legal certainty and continuity post Brexit, of renegotiating all our trade agreements. We must remove swathes of Henry VIII provisions and simplify stay in the single market and the customs union for the the Bill significantly.The report’ssummary of conclusions sake of the Good Friday agreement, and above all for and recommendations are, I suggest, 65 paragraphs of the sake of the prosperity of our nation. good sense that the Government would be wise to embrace. But will they? 12.10 pm During the passage in this House of what became Lord Warner (CB): My Lords, even if I was not a the ill-conceived Health and Social Care Act 2012, culturally pro-European Londoner who considers that David Cameron paused the Bill to try to sort out the Brexit will damage the future of my children and mess that the Government had got themselves into. grandchildren, I would regard the Bill as seriously This Government would do well to consider doing flawed. I accept totally that EU withdrawal requires something similar with this Bill, drawing on the legislation that ensures legal certainty and continuity Constitution Committee’s report and using all-party the day after we exit. My problem with the Bill is not talks. Perhaps the Minister could indicate whether the its purpose but its cack-handed approach to executing Government have any appetite for such an approach. that purpose, as the Constitution Committee has If, however, they choose to dig in for minimal change, forensically exposed. it will fall to this House to tackle robustly the many The Bill neither achieves legal certainty nor upholds constitutional problems posed by this Bill. We should the sovereignty of the UK Parliament. Indeed, in its not be deterred from doing so by any internal or present form it diminishes that sovereignty. The external threats and rants about thwarting Brexit or Government have chosen to ignore the warning they the will of the Commons. After all, many Members of were given last September by the Constitution Committee the House of Commons expect and want this House, about the unsatisfactory nature of the Bill’s approach, with its knowledge and expertise, to sort out the Bill’s when in an interim report it said: defects. It is in the national interest that we do so. “The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government”. 12.16 pm The Government simply did not deal with these matters Lord Moynihan (Con): My Lords, sport and sport- during the passage of the Bill in the Commons, despite related activity contribute some £20 billion of GVA the valiant efforts of a former Conservative Attorney- and 400,000 full-time equivalent jobs. It therefore General and others. The Bill remains a constitutional makes a greater contribution than such sectors as the mess despite all the discussions in the Commons recorded sale and repair of motor vehicles and accounting. Yet in the pages of Hansard, which are now said to exceed a great deal of the sports policy framework under the length of War and Peace. Yet a dozen or so crisp which the EU operates is based on a global lex sportiva, 1563 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1564 to which sport has to have due regard. This requires become subject to UK law, do the Government intend agreement with international and national federations to subject the same rules that currently apply to individuals that govern the rules of sport and approve government- outside the EU and the EEA to football clubs throughout to-sport relationships. The proposal to move existing the United Kingdom? If so, 332 players would not legislation from the European Union into the framework meet the current requirements that non-EU and non-EEA of this Bill will be fraught with difficulty because it players must meet. Will every athlete with current does not take into account lex sportiva or the international citizenship in one of the EU or EEA membership and national federations. states require a work permit? The Chancellor, Philip Let me give noble Lords some examples. Take the Hammond—whose view on Brexit, incidentally, I totally Kolpak rule, the loss of which would mean that players endorse—stated that there was no likelihood that new from countries which have an associate trade agreement immigration controls would apply to highly skilled with the EU would no longer have the same rights as and highly paid workers. Will the Minister confirm UK players. Currently, the Kolpak rule applies to that all professional footballers, including in the lower those players who hold an EU passport, who are leagues, would fit into that category? Will the Government married to an EU or EEA national, or who come confirm that post Brexit the Bosman ruling will no under the Kolpak ruling. These players are not currently longer apply in the United Kingdom? classified as foreign, and that is recognised in the The consequences for professional sport flow through quota system used by professional sports in the United to the amateur ranks. The House has an excellent Kingdom. Governing bodies such as the RFU, which record of influencing sports policy.Only yesterday—and has the responsibility for issuing endorsements to I thank them—the Government had clearly listened to rugby union players outside the EU and EEA, have the close vote on the future role of the UK anti-doping stated that they cannot even look at their regulations agency during the GDPR votes shortly before Christmas, regarding overseas players until the terms of Brexit giving UKAD a welcome extra £6 million over two have been confirmed. This causes uncertainty for clubs years and promising to revise its powers by September. signing multiyear contracts,and currently affects 72 eligible Delegated powers to modify retained EU law—not players. Another example is the Cotonou agreement, a just to correct it, but to make substantial new provisions treaty between the EU and a group of states including and remedy changes to our international obligations—will South Africa, Fiji, Samoa and Tonga, whose rugby be urgently required if we are to protect the competitive players could, at present, play for a British-based team position and the future success of the sports sector in and not count towards the foreign player quota. this country, which I believe is critical. Without membership of the EU, the Kolpak rule goes. Saracens, which has 14 such players, could be 12.21 pm particularly hard hit. Cricket, through the ECB, has also said that it is waiting to hear from the Home Baroness Kennedy of The Shaws (Lab): My Lords, Office. Have the Government reached agreement with since the referendum this nation has been on a rather the relevant governing bodies of sport as well as with incredible journey. Our learning curve has been huge; the EU? Uncertainty destabilises the market. Cricketers at least for most of us in Parliament, certainly for me. are working under the assumption that any deal signed There are ideologues who do not want to listen to before the end of 2017 will not be affected by Brexit, the fine detail about anything, but there cannot be but will they? many of us who have not discovered through debate, conversation or the media that the strata of connections Article 19 of the FIFA regulations on the status and collaborations between the nations of Europe run and transfer of players internationally is currently very deep and to the benefit of us all. limited by FIFA to those over the age of 18. However, there is an exception within the territory of the European I find myself repeating, “if only”. If only the national Union for players aged between 16 and 18. Post Brexit, debate before the referendum had been as rich in this exemption would no longer be available for British information. If only people had known just how much clubs. We have 70 players in this category and who poorer this rupture will make them and their children. would be ineligible, thus denying us an important If only they had seen how it would diminish us as a pipeline of young talent and putting us at a disadvantage nation and reduce our power in the world. If only to European clubs. Yet as part of lex sportiva, it is people had known about the damage to our constitution FIFA and the EU that must decide. What discussions that the referendum would unleash, with all the talk of have the Government had with FIFA to secure the “the will of the people”, forgetting that we live in a continuation of the exemption, the loss of which representative democracy and that that will is expressed would hit the lower-league clubs particularly hard? through having representatives in Parliament, precisely because they immerse themselves in the complexity of Will the Government clarify the impact of EU state issues. aid legislation, which prohibits member states from If only there had been a proper debate about cross- favouring one market participant over another? Do border trading always requiring an overarching the Government intend to transfer these restrictions international court of some kind. All the bluster about into UK law or, as I hope, allow for new rules to open wanting our own courts to decide everything that up the potential for public bodies to subsidise stadium affects us did not deal with the fact that if you trade developments and other major sporting infrastructure with Poland the Poles are not going to settle for a UK projects? That would be far reaching. court deciding the outcome of a dispute. The World Finally, given that the free movement directive would Trade Organization, out there in the great blue yonder no longer apply and migration of EU nationals would to which Brexiteers aspire, also has its own court to 1565 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1566

[BARONESS KENNEDY OF THE SHAWS] country.Wehave been given an account that employment deal with disputes. Norway and its little grouping in rights will not be eroded. I am afraid I do not have their semi-detached relationship with Europe had to much confidence in those promises because we know invent the EFTA Court for precisely that reason. that a section of the Conservative Party is very keen to If only people had been truly informed about the deregulate and remove employment protections around high level of medical and scientific advances—the the working time directive, the agency work directive, creation of medicines and cancer remedies—that are pregnancy protections and so on. Across the whole of made because of experts working closely together. Europe there is a European protection order to deal There are the benefits to our universities in advancing with violence against women and girls.Did your Lordships knowledge and understanding. Defence and security know that? Of course not; most people do not. collaborations prevent conflict and crime. There is What about the promise of meaningful debate at consumer protection. There is the risk now to peace in the end of all this? There has to be a clarification Ireland. Was it ever fully explained that the customs about the options that will be available, because one of union was key to a borderless Ireland? the options has to be to remain. I hope the amendments If only we had not had a slanging match but will nail down some of these problems. I am most instead had grown to understand the extent and benefits concerned about the excision of the Charter of of the financial and trading relationships that flowed Fundamental Rights from the Bill. That should set from our membership. If only we had spoken softly alarm bells ringing because it is telling us that rights about how important it is to work with our closest are not a high priority for this Government. neighbours because it stops wars and that together we It is hard for people to change their minds, but with can keep a check on the rise of extremism. With more complete information people do so. We do it in neighbours, there are inevitably aspects of the connection our daily lives. I will deeply regret it if we do not put that grate on us and which we would like to change, information clearly in front of people. I am not going but that should never be the reason for pulling up the to settle for a bad deal, and if that means a second drawbridge. referendum then noble Lords can count on me being I am a lawyer, and because of the nature of my behind it. practice I am all too aware of the incredible advantages of Europe, Eurojust and a European arrest warrant. 12.28 pm The underbelly of markets is black markets, and today Lord Thomas of Gresford (LD): I heartily endorse they cross borders. We have trafficking in drugs, arms, everything that the noble Baroness, Lady Kennedy, fissile material, body parts, human eggs, babies, and said about the reciprocity of the law across Europe, women and children for sex and domestic servitude. particularly in the field of crime and the pursuit of You cannot deal with that kind of crime without close criminals, but I wish to focus on the devolution provisions collaboration and developed mechanisms, and these in the Bill. require reciprocity and a level of legal harmony. Clause 11 is agreed on all sides to be defective and A few weeks ago, the House of Lords European in need of amendment. The Government promised to Union sub-committee on justice issues, which I chair, bring forward an amendment on Report in the Commons heard from a very distinguished judge on the EFTA but failed. I think we all assumed that negotiations Court. He had been its president for 12 years and had were going on backstage with the devolved sat on it for years beforehand. I asked him whether we Administrations, but that was not the case. We were could be part of the Euro-warrant system—EFTA is told in a meeting on Monday with Mark Drakeford of not part of that system—without the European Court the Welsh Government and Michael Russell of the of Justice. His answer was no. Scottish Government, in the presence of the relevant So how are we going to collaborate on all these government Ministers, that they had not been consulted issues of crime? Legal processes affecting families, on the proposed amendment to Clause 11 at all. We do individuals and businesses are reliant on essential not want to be presented at some stage in Committee regulations that have been very successful and to whose with a government amendment that has been drafted creation we have been party: Brussels 1, Brussels 2 and without even consultation with, let alone the agreement the maintenance regulation. A woman married to an of, Cardiff and Edinburgh. What would we do with it? Italian can go to her local court and get an order if he The whole point of the exception taken to Clause 11 is shoves off back to Italy and is not paying maintenance the lack of consultation and the evident incomprehension for his children. A company that suddenly has a of the principles of devolution by Ministers. Both default from its trading partner in Poland can go to a Cardiff and Edinburgh, with the full support of every court in Middlesbrough and get an order that will be elected member of every political party, rightly conclude effective over there. That is done because of mutuality, that, as currently drafted, Clause 11 and Schedules 2 and it is reciprocal. I fear that bringing law in here, and 3 put all the cards in the hands of Westminster. nailing it down and saying, “We are introducing it”, The proposal in the Bill is that the UK Government does not deal with that reciprocity. We are going to will dictate, with no requirement for consultation or have to have 27 separate relationships in order to make agreement, how the powers repatriated under retained it happen. EU law should or should not be parcelled out to The Henry VIII powers still have not been adequately Cardiff, Edinburgh and Belfast, even in areas of policy constrained in the amendments that passed in the where the devolved Administrations have full and Commons, and I am very concerned about what the exclusive competence. Not only that, but UK Ministers implications will be for the rights of individuals in this are given power to alter not merely the Scotland Act 1567 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1568 and the Government of Wales Act but the existing Step 3: the Government should negotiate with the legislation passed by the Scottish Parliament and the devolved Administrations on the basis of parity of Welsh Assembly—and by ministerial decree, through esteem and respect for the devolution principles. They statutory instruments and Orders in Council. Welsh should agree the areas for the new frameworks that and Scottish Ministers have no such powers. will be required. The noble and learned Lord, Lord Hope, described Step 4: they should bring forward a new Bill on an the architecture of the Bill as misguided and ill-informed, agreed basis, with legislative consent orders ready to and my noble friend Lord Newby described the go. These current provisions are not fit for purpose. Government’s approach as a combination of arrogance and incompetence. Nowhere are these descriptions 12.35 pm truer than in this mishmash of the devolution settlements. Lord Bichard (CB): My Lords, many Peers here and many Members in the other place have referred to this The powers repatriated from Brussels will include as a technical Bill. In its current state, it is anything but funding and policy-making in many fields. For example, a technical Bill, because it has serious implications for take the European Regional Development Fund and our constitution and for our system of democracy. We the European Social Fund. Brussels has parcelled should recognise this. these out across 28 member states on the basis of Since the referendum, we have heard a great deal of need. In the 2014-20 European budget, Wales benefits the need to respect the democratic mandate which the by over £2 billion. With matched funding, a total result provided. The people voted, albeit by a narrow investment of £3 billion is available to the Welsh majority, to leave the EU, and it must therefore be Government to support people into work and training, right that their decision is implemented. This is a on youth employment, research and innovation, business moment for us to reflect on and respect the foundations competitiveness, renewable energy and energy efficiency, on which our democratic system has been built, not to and connectivity and urban development. All these ignore them. For example, our system has within it a are fully devolved competences for the Welsh Government. series of checks and balances which ensure that political But the much-criticised and hoary old Barnett formula, leaders, once elected, cannot do as they wish without which is the current Westminster vehicle for funding challenge, or without the need to transparently justify Cardiff, Edinburgh and Belfast from UK government their actions and to be accountable in the long term. sources, is divided not on the basis of need but on a These checks and balances are never more important simple population headcount. Under the provisions of than when a policy is controversial or is the subject of the Bill, there would be nothing to prevent Ministers, the kind of passionate feelings that many politicians by statutory instrument and without the consent of demonstrate for Brexit. the devolved Administrations,departing from the Brussels Theses checks mean that departmental accounting basis of need to the Barnett model of population officers have the right to seek directions; that this count. English politics and English interests are bound House has the right to scrutinise and challenge; that to be engaged in funding decisions. After all, in the the National Audit Office, which I chair, has the right policy areas devolved to the devolved Administrations, not just to audit public bodies but to investigate and Westminster and its Ministers act as an English report on value for money and propriety; and, of Parliament. English interests are going to intrude. course, that the judiciary has the responsibility to judge whether or not the law is being respected. These All are agreed that there will be a need for new UK checks are not, as some seem to believe, irritating frameworks, but the Bill hands all the power to UK evidence of a determination to undermine democracy, government Ministers. They will be able to dictate to but central tenets of our democratic model. We should the suppliant and powerless devolved Administrations treat them as such, cherishing and embracing them, whatever frameworks they think “appropriate”in whatever because true democracy recognises that the best decisions fields they choose. derive from an exchange of opinion. As the noble The Bill cannot be chuckled through this House as Baroness, Lady Smith, said yesterday, some decisions David Davis is trying to chuckle his way through are too important to be left to those who have no European negotiations. Someone in this Government doubt. has to take a grip, to make decisions and determine As many Peers have said, our particular democracy both a destination and a course to get there. has also placed limitations on the power of the Executive to make substantive changes to law by way of secondary Step 1: the devolution proposals in the Bill have legislation. However, the Bill before us specifically already failed the test and there is no time while the gives Ministers the right, via the correcting powers in Bill is in this House to go through with it. They should Clauses 7, 8 and 9, to amend primary legislation by be extracted from the Bill forthwith. Clause 11, Schedules 2 statutory instrument. For example, Clause 7 sets out and 3 and any other related provisions should be taken the powers for Ministers using secondary legislation out of the Bill. to amend or undo any EU laws they claim are not Step 2: the Government should demand from their operating effectively or are suffering from any other DUP supporters that in return for the £1 billion bung deficiency arising from the withdrawal. The vagueness they have been given, they should make the compromises of these definitions gives Ministers unprecedented necessary to revive the Northern Ireland Assembly discretion, which strikes at the heart of our democracy. and Executive.If Paisley could sit down with McGuinness, Many people who voted for Brexit did so because the current DUP leadership owes it to their countrymen they felt ignored and that they had lost control of their to do the same. destinies. They did not vote for Brexit in order to give 1569 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1570

[LORD BICHARD] We have heard a great deal about the importance of Ministersunbridledpowerstotakeawaytheirfundamental the constitution. It is quite clear from this debate, if rights. The Government belatedly seem prepared to in no other way, that referenda and representative make concessions on this issue, but I am by no means parliamentary democracy are not easy companions. I yet convinced that these go far enough. The way in have always held that we in Parliament are the practitioners which these concessions have been offered—with apparent as well as the representatives, but that the constitution reluctance and so late in the day—does little to reassure belongs to the people. From my experience of what we me that the importance of this issue for the sovereignty have been through in recent years I have come to the of Parliament has been understood. This view was conclusion that the rare case for constitutional change reinforced earlier by the noble Baroness, Lady Kramer. to be proposed is in the context of a general election. That is a way to bring the whole system together, but Our particular democracy is also defined by the we seem to have been busy building dual systems and way in which we provide access to fundamental human then telling Parliament that its function is to deliver rights—the right to education; the right of older people what comes through a referendum. That makes a to lead lives of dignity and independence; the right to nonsense of the concept of dynamic representative protect personal data; and the right to conscientiously democracy. That is why the debate, discussion and object. But by excluding the European Charter of search that goes on in processing the Bill—not the Bill Fundamental Rights from retained EU law, the itself; we have heard too much about how the Bill is Government have called into question our commitment important—is vital to our parliamentary heritage. It to those rights. They have created confusion at the really will not do for Ministers to keep lecturing us on very time when clarity is needed and they have diluted how our job is simply to get it through. It is not. It is to the domestic protection available to those who feel make sure that what it is doing is compatible with that they have been denied access. Our determination everything that this country has stood for. to create a society that recognises and values these Human rights are, of course, central to that. I have fundamental rights, and that genuinely strives to turn the joy—I think that is the right word to use—of the aspirations into reality, is what has given our serving on the EU Justice Sub-Committee, which my democracy its meaning and purpose. We should never noble friend Lady Kennedy chairs. She spoke very dilute our commitment to those rights or even give the powerfully about those issues today. impression that we are doing so. There are two issues that I would take above all others. The first is that the concept of citizenship Our future is not just about whether we remain part matters deeply. By our referendum, we have removed of the EU, as some seem to believe. As the right European citizenship from countless numbers of people reverend Prelate the Bishop of Leeds said yesterday in who thought they were enjoying what citizenship meant. what I thought was a wonderful speech, we need to That is a very grave thing to have happened. Therefore, ask ourselves what sort of Britain we want to inhabit. one of the things that we must do in our deliberations Who do we think we are? What do we live for and in this House is make absolutely certain, if it can be what are we prepared to die for? For me, and I suspect done, that we have arrangements in place that will for many others in this House, the answer lies in the meet the challenge of restoring the rights that people democratic system we have built down the years and in thought they had. the fundamental human rights that many of us have The other issue is the European court. I have been sought to enhance and protect during our lives. The horrified and dismayed in the work of the justice withdrawal process must never be achieved at the committee to hear and see more and more evidence of expense of those core values. There is not now, and I the gap between myths, rhetoric and populism on one hope that there never will be, a mandate for that. We in side and reality on the other. Almost without exception, this House need to have the courage to amend and witness after witness to whom we have listened has improve this flawed Bill, not to frustrate democracy, said how indispensable the European court is. Over but to protect it. and again we have been given examples of the key part played by British lawyers in developing and strengthening 12.41 pm European law—it is a tragedy that the British people Lord Judd (Lab): My Lords, that is a difficult do not understand this and have not been led to speech to follow. It was powerful. I am very glad that understand it. We are living in an interdependent the noble Lord concentrated on what the right reverend world and we wanted to be part of an interdependent Prelate the Bishop of Leeds said yesterday, because Europe. That required strong law in Europe and the that was a very challenging intervention as well. He British have been playing a huge part in that, so what talked about the issue of who we are, what kind of are we doing walking away from it? Britain we want to be and what kind of world we want Whatever happens on the Bill, and I hope we will to try to play our part in creating. I will add only one have some very demanding and searching debates, I other issue alongside those. For me, it is an absolutely hope we remember—to come back to the intervention inescapable truth that from the moment we are born yesterday by the right reverend Prelate—that we cannot we are locked into an interdependent global community. escape from being members of an interdependent The way we shall be judged by history is by the success world. Our children and grandchildren will ask what we make of finding ways to meet that reality and to we did towards devising the policies and arrangements build institutions and methods of intergovernmental to meet the challenges of an interdependent world or co-operation that enable us to face it. Climate change whether we walked away in the opposite direction with is a great example; security is another. a preoccupation with what was immediately popular. 1571 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1572

12.48 pm There are three large areas of discussion. Should the Executive have power to accept the final deal Lord Naseby (Con): My Lords, the noble Lord, without Parliament having a vote or, indeed, the people Lord Judd, is right to comment and demand that having another vote, or should there be further votes citizenship is vital. I say that with some feeling because for Parliament en route? We must recognise that any my grandparents came from Germany in 1913. They Government has to govern and give the leadership were about to get British citizenship but they did not that we, the people, want. I share the view that it is a achieve it. They were sent back to Germany but, great pity that the Cabinet today seems to be riven by thankfully, reappeared after the First World War, so I various factions: that is not what I want to see in my guess a quarter of my blood is German. Government. Secondly, everybody that has contributed I have been pro-European all my political life. I has made it clear that this is all about the future of our joined the Young European Managers’ Association, nation. I, for one, am not in favour of a second along with my noble friends Lord Wakeham and Lord referendum. Vinson. We campaigned as young professionals to The challenge, though, is not just a constitutional encourage the country to join Europe, and of course one. Wehave to accommodate trade, industry,commerce success was achieved. Just after that success, we had and the City because they are so vital to our economy, the 1974 election. to employment and to standards of living. There are trade deals out there. I know quite a lot about Asia. I I campaigned in that election in Northampton, a have visited many parts of Asia, both as an executive marginal seat that had been Labour all its life, where I and as a politician. Frankly, it is not good enough at won by the princely majority of 179, thanks, I think, the moment to be appointing MPs as trade envoys. to the Europeans in that constituency who supported That is second-hand. We need experienced negotiators me. When I got to Parliament it was in the period out there with specific experience of those markets to when we had dual-mandate Members of the European produce future trade deals that will enable us, a single Parliament; in other words, they were elected to our country, to trade extensively and successfully. Parliament and also sat in the European Parliament. Then we had elected MEPs. Somehow, somewhere in I finish with two quick points. I want to say on the that period, from 1974 through the years, there was record thank you to those who are doing the negotiating the beginning of disillusionment. Then we had the for us. To all those civil servants and politicians, I say a 1997 election. I had been in the seat 23 years, in a big thank you. At this point, frankly, our nation wants marginal seat, and I had a Referendum Party candidate inspirational leadership and a goal that we can all sign purposely put up against me. At that point I was up to. This is a time for a united Cabinet to decide Chairman of Ways and Means and not able to campaign what we really want, what we think we can get from very much and I lost by a few hundred. So Europe has Europe and what we can offer in return—not just in been very important to me. EU terms, but to defence, culture and so on. Do this, and the country will respond. If you sit in a marginal seat you have to learn to listen. In this case I suggest to your Lordships that we now have to listen and accept the practicality of what 12.55 pm has happened in the referendum. I voted to remain—that Lord Lea of Crondall (Lab): My Lords, the Bill does not surprise anybody—but I do now listen deeply before us is a dog’s breakfast. In my view, it is inevitably to industry, commerce, trade and, above all, the City, so, for the reasons touched on only a few minutes ago, to ensure that we look after their interests. We have to first by the noble Lord, Lord Bichard, and then by my accommodate both what the majority of people wanted noble friend Lord Judd; namely, it was obliged to and these key dimensions of our society. I do not need spatchcock parliamentary sovereignty and procedure to explain the Bill to anybody here, but as I understand with plebiscitary democracy. As my noble friend Lord it we are transferring European law into UK law. I am Judd said, the two do not fit. That is why there are not a lawyer, but it needs to be done in a stable and several examples of where we are struggling, such as orderly way. the Henry VIII powers and the interface with the I had the privilege of handling the Maastricht Bill devolved Administrations. in the other place. I had a good team that worked with There is, however, one novel feature in the Bill, me and the first decision we took was to call in all the which came in a late amendment in the House of sides that had strong views about Maastricht, listen to Commons that was, I think, carried by four votes: them and decide what could be agreed before it got on Clause 9 provides that Parliament shall consider the to the Floor of the House and what could not be outcome of the negotiations. I wish to develop a point agreed. One of the problems, I suggest to your Lordships, made by my noble and learned friend Lord Falconer is that we do not have a similar procedure here. We of Thoroton, concerning whether there needs to be a have a very good Constitution Committee, no doubt, mandate at the start or at the finish. As a TUC official but I believe, having read its report, that it leaves an for many years—the TUC is accountable in innumerable area of confusion. Certainly, not all of its proposals ways—it strikes me that one does not go into a negotiation are terribly practical. That is where we come to the without first determining some basics about what one problem of Henry VIII clauses. I do not think it is wishes to achieve; in other words, the remit or the practical to have all these challenges in primary legislation: mandate. If you do not have a mandate, the union it is just not practical and if it is not practical, we need executive will, when you get back, say that you did not to ensure that there are safeguards. That, I believe, achieve what you were asked to do. So, first of all, you is vital. have to define something about your priorities and, 1573 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1574

[LORD LEA OF CRONDALL] 1.02 pm secondly, you have to make them less than extravagant or else you will come back looking foolish. HMG have Lord Sharkey (LD): My Lords, I declare an interest done none of that. as chair of the Hansard Society, whose briefing has been very helpful in considering the Bill, as has the We saw an example of that at Lancaster House. excellent report from the Constitution Committee. I Not only was that speech not a parliamentary presentation, very much look forward to seeing the imminent report it was simply a glorified press conference, where the of the DPRR Committee later this week. The Bill fourth estate replaced Parliament. It is not just that it represents a massive transfer of authority away from was not adopted and ratified by Parliament; it was Parliament to the Executive, and such a transfer requires not even put to Parliament—I do not think any proper constraint via proper parliamentary scrutiny. parliamentarians were invited. What was said at Lancaster The question is how Parliament might best secure House was certainly not a road map that Monsieur reasonable oversight and scrutiny of this flood of Barnier or anyone else across the channel finds helpful delegated legislation without frustrating the purpose at all to the negotiations. of the Bill. Taking my trade union analogy one stage further, I want to talk about a parliamentary mandate, which Previously,Parliament has insisted that a strengthened we need to include. That will be the essence of an scrutiny procedure be inserted into Bills that grant amendment on the remit—namely, having a mandate Ministers wide delegated powers: the super-affirmative at the outset of the negotiation and not just a vote procedure in the case of LROs; the enhanced affirmative at the end—which will complement the Commons procedure in the case of the Public Bodies Act. There amendment. Some of us hope to table that amendment is no such procedure in the Bill, and that is a very with the Public Bill Office tomorrow, and later we will serious defect. The Bill adds a novel procedural element put some flesh on its bones. Whether this is helpful to to the SI process. It sets up in the Commons a sifting the Government depends on whether Boris Johnson committee to examine all negative SIs, and it will have and Philip Hammond can be joined at the waist like the power to recommend an upgrade to the affirmative Siamese twins—we will have to wait for the results of procedure. It can only recommend, though, and that is that little exercise. not sufficient; the committee should be able to require an upgrade. We will want to address this as the Bill When it comes to the negotiations, something is proceeds. The Bill contains nothing about how the very clear. If you look around at all the think tanks sifting committee is to arrive at its decisions, and we within two or three miles of here, you will find they all will want to make good that lack. The Bill proposes a acknowledge that there are five options. The first is sifting committee only in the Commons. I was glad to full divorce; the second is free trade with no express hear the noble Baroness the Leader of the House alignment and some trade-offs; the third is pick-and-mix promise to correct that and deliver an equivalent for on free trade with greater alignment in particular this House. If a sifting committee in either House areas; the fourth is associate membership, which roughly decided to upgrade an SI, that should be binding upon means the EEA—I will come back to that; and the the Minister. fifth is adjusted membership, with EU law directly applicable. I think we will probably come down on I think it is generally acknowledged that Commons number four, but I thought I would simply set out the scrutiny of SIs leaves much to be desired, but that menu. scrutiny process is left unchanged by the Bill. Sifting is not scrutiny. As usual, detailed and thorough scrutiny The last three of those options involve free movement, will take place in our House, where existing procedures give or take specific tests of different types that can be require us to say yes or no—we cannot amend. We will defined. Number four would tie in with a deal done on of course be reluctant to invite more visits from the the island of Ireland. I noticed the other day that the noble Lord, Lord Strathclyde, by exercising frequently, EU Council is now insisting in public that the 8 December or at all, what may be called the nuclear option. But agreement is signed and sealed before the totality of we should not allow unsatisfactory SIs to grant negotiation is set in motion. Perhaps the Minister unsatisfactory powers to the Executive. It would be could confirm in his reply that that is the position. better to introduce a new power to return an SI to the There is no point in disguising the fact that I am for Commons for reconsideration—a proposal recommended the European Economic Area, which is the only option by the noble Lord, Lord Strathclyde, in his report. outside the EU that enables us to retain participation It is not just the scrutiny procedures in the Bill that in the single market, the four freedoms and so forth. are inadequate, but their scope as well. For example, However, that means something like a beefed-up SIs generated by Clause 17 are not subject to the co-ordinating committee within the EEA twin-pillar sifting mechanism, and they should be. There is also structure between the two sets of Councils of Ministers. the Solicitor-General’s declared intention to use SIs In my concluding sentence, I want to say a word deriving from existing non-Brexit-related Acts to make about workers’ rights and the TUC. Frances O’Grady changes to retained EU law. These SIs need to be made the point the other day that, if we are not brought within the strengthened SI procedures in this careful, the Bill could open Pandora’s box and that Bill. There will be SIs generated by other Brexit Bills. workers’ rights are at risk. If we are talking about We want all of them to be scrutinised as though they workers’ disillusionment with the whole of this exercise, were generated by this Bill. For example, Clause 2 of then it is very important that we get a guarantee that the Trade Bill contains a negative procedure power to that cannot happen. amend retained EU law where that law has the status 1575 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1576 of primary legislation. The safeguards in the EU Some key issues of concern with the Bill have withdrawal Bill are absent from the Trade Bill. We will already been brilliantly exposed by previous speakers. want to change that. It is our duty to scrutinise the legislation before us, We will also want to look at the urgency provisions which raises fundamental issues that go to the heart of in this Bill. As things stand, there are no constraints our constitutional framework and parliamentary on the exercise of the “urgent case”power in Schedule 7. sovereignty. I do hope that my noble friend will listen Under this power, Ministers can lay a made affirmative carefully and relay these concerns back to his department, instrument which will remain in force unless annulled so that they can be addressed in government amendments. within a month. We understand why the urgent case First, on the Henry VIII powers, this House cannot power may be needed, but we will also want to understand rubber stamp giving authority to the Executive that why in each case. We will require the Minister to would normally be the role of Parliament as a whole. explain and justify the use of the urgency power. We The amendments to Clause 7 introduced in the other will also need to provide safeguards on the use of this place are insufficient to prevent parliamentary democracy power, including defining limits on its use and perhaps being subverted by Ministers. As my noble friend involving the sifting committees. Lord Balfe rightly said, how would we on these The Bill at least contains sunset provisions. These Benches—or indeed many on the Benches opposite—feel are for the SIs themselves, not for whatever is enacted about handing such sweeping powers to Jeremy Corbyn? via them. It would be impractical to impose a sunset We must not allow the Bill to water down hard-won provision on these enactments, but that does not mean rights, for women, workers, the disabled and minorities that they should not be reviewed. For primary legislation, that people in this country have relied on. the Government have to produce a report for Parliament I share the concerns expressed by so many noble within three to five years of royal assent. We see the Lords about Northern Ireland. The Government have case for a similar provision for legislation enacted by promised a frictionless border, but have not actually withdrawal-related SIs. come up with concrete proposals on how this will This Bill grants Ministers exceptional powers but work. Paragraph 49 of the 8 December agreement does not provide for effective scrutiny. That is very promises regulatory alignment if no other way of dangerous for the quality of the legislation and for the protecting existing border freedoms can be found. authority of Parliament. I hope we will be able to That must mean staying in the customs union, single reduce these dangers as the Bill progresses. market and the EEA, with EFTA-style arrangements. There is no other way. Yet the Government, apart perhaps from my right honourable friend the Chancellor, have tried to skirt over such fundamental issues with 1.07 pm soundbites. Baroness Altmann (Con): It is a pleasure to follow Ideological fixations or fantasies must not undermine the noble Lord, Lord Sharkey, and so many other the Good Friday agreement that has brought peace to colleagues across the House in this monumentally Northern Ireland. The British people did not vote to important debate. I have always been proud to be break up the United Kingdom. In the words of Abraham British and believe the UK’s amazing achievements Lincoln: have been magnified by being a gateway to the rest of “You cannot escape the responsibility of tomorrow by evading Europe. Free markets across the Channel and our it today”. integrated industrial operations have enhanced our That brings me to one of the Bill’s most serious flaws. performance on the global stage. One-fifth of the UK Parliament, not Ministers, must have a meaningful supply chain is located inside the EU. I firmly believe vote on the terms of our withdrawal. The Government our multicultural diversity has made Britain a vibrant have offered a vote on a potentially very damaging beacon of tolerance, decency and mutual respect, deal, and the potentially even more damaging no deal. harnessing home-grown and overseas expertise to the That is a meaningless, not meaningful vote. Why is it benefit of ourselves and the wider world. We must not so important? Because we need to respect the will of throw this away. the people.This is not about undermining our democracy; Churchill spoke in his 1951 speech of the disadvantages it is about upholding it. and even dangers to us in standing aloof. He understood Many noble Lords have insisted that democracy the perils of obsession with national sovereignty. It is a requires that the 2016 vote is sacrosanct. They say that troubling sign of our times that anyone suggesting this is the will of the British people. They insist that amending this Bill may be accused of wanting to those who voted to leave knew what they were voting frustrate the will of the people. That is nonsense. for. Indeed they did. They voted to be better off; Parliament has respected the result of the referendum. to have the exact same benefits as we have in the It has triggered Article 50—albeit perhaps before we EU single market and customs union; for an extra were ready—and is now trying to negotiate a good £350 million a week that could go to the NHS; for outcome for the whole United Kingdom from a new easily agreed new free trade deals; for no change to the UK-EU relationship. Northern Ireland border—and for having our cake This Bill is supposed to be about providing certainty and eating it. I could go on, but which of these for the future and, most particularly, about our elements promoted to the British people by the Leave constitutional arrangements and legal framework after campaign is being achieved? So far, it seems, not one. we transfer all EU-derived law into UK law as a result If these promises cannot be delivered, what should of Parliament’s respect for the 2016 referendum vote a democracy do? Triggering Article 50 has respected to leave the EU. the democratic vote of 2016. But we are now in 2018 1577 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1578

[BARONESS ALTMANN] want it to happen now, today, and with no transition. and things may have changed. Democracy does not The other half, the Hammond half, want to shadow happen at only one moment in time. This is about the the economic and trade benefits of the European ordinary people of this country who are trusting us to Union as closely as possible. My own party is not look after their future. The Bill needs to allow flexibility exactly free from criticism either. How can we answer to cater for alternative scenarios that reflect new realities. Mr Barnier’s question—what does Britain want?—when That brings me, finally, to the Bill’s provisions for a we do not know ourselves? so-called transition or implementation period. How The Trade Secretary, meanwhile, fresh from the has Parliament allowed itself to be enticed into this Derek Trotter school of international trade negotiations trap? We keep hearing about wanting to “take back —its strapline being, “This time next year we’ll all be control”. I say to noble Lords on all sides of the millionaires”—is touring the globe to drum up trade House who are sanguine about the direction of travel with deals that “could”, “might”, “possibly”, “maybe”, so far: please, open your eyes. Transition is the opposite “sometime in the future”, come to fruition. On top of of taking back control. It is about losing control. that we hear the business chorus, the cacophony coming Once we are in a transition, we are trapped, with no from Davos, demanding certainty—a certainty,of course, way back. Our only ammunition may be a suicide that an embattled Prime Minister just cannot give. bomb. We have surrendered our future and entered the unknown. Meanwhile, the money men and women in the City of London are packing their bags and will probably If what the British people were promised turns out head for Frankfurt, as the noble Lord, Lord Higgins, to be fantasy—nearly one year on from triggering suggested yesterday in his quite powerful speech. They Article 50, we are still unsure what lies ahead—we have promises to keep, and miles to go before we cannot rely on meaningless slogans such as “Brexit sleepwalk out of the European Union—with apologies means Brexit”, and referring to “deep and special” to Robert Frost. British businesses and their workforces partnerships. We cannot hand the Executive a form cannot wait for the Government to decide what they with plenty of headings and no detail, and just leave want: equivalence or passporting; customs union-lite them to fill in the blanks. We must have a better idea of or not at all; regulatory alignment or compatibility; where we are heading. Without a realistic vision of the transition or implementation or maybe both. Then, of future we want—one that is achievable—we must not course,we have what 19th-century Peers in your Lordships’ continue on the current path without any alternatives. House used to call “the Irish question”. Here I declare Perhaps an extension, as suggested by my honourable my Irish nationality. The new Irish question is of friend Mr Rees-Mogg, would be more honest, rather course: “How can you have virtually no border with than a transition with no say over the rules. There are the Republic of Ireland, an EU member state, and not signs that the EU might agree to this. My honourable be in the customs union and the single market?”. friend has also pointed out that entering such a transition Paragraph 49 of the 8 December agreement, which would be the first time since 1066 that our laws could supposedly answers this question, is written so be made without our having a say. Does that not mean ambiguously that Malcolm Tucker from “The Thick that Europe has not been a dictatorship? We have had, of It” would have been proud. and still have, the freedom to make our own rules and laws inside the EU. The purpose of the Bill before us is, as we know, to The necessary changes to the Bill need to be passed. provide a functioning statute book on the day after we That is not about undermining the will of the people; leave the European Union. But this Bill is not just a it is about upholding democracy. procedural device: it is not a cut-and-paste,drag-and-drop, pull-across-and-slap-it-down technical exercise to convert EU law as it stands at the moment of exit into domestic 1.15 pm law. It is, in the words of our own House of Lords Baroness Crawley (Lab): My Lords, it is a pleasure Delegated Powers and Regulatory Reform Committee, to follow the noble Baroness, Lady Altmann, who has a Bill that, always been a steadfast pro-European. I refer noble “contains unacceptably wide Henry VIII powers”, Lords to my entry in the register of interests as a former MEP. or, as the noble and learned Lord, Lord Hope, said in his excellent speech yesterday,“Oliver Cromwell”powers. So, Brexit—how do we think it is going? No unparliamentary language, please, from my noble friend Chris Bryant MP suggested at Second Reading in Lord Foulkes of Cumnock in answering that question. another place that in the history of the 20th century, According to the Government’s own economic impact and I understand that he looked into this, no Bill ever report this week, we have to hold up our hands as the attempted to do this, even in times of war or civil political establishment in this country and admit that emergency. The Fawcett Society said in its briefing to we have probably scuppered people’seconomic prospects us that, notwithstanding the gains from the equality for the next 15 to 20 years. This Bill, which our own Bill in the other place, it fears Ministers’ excessive Constitution Committee described as “constitutionally powers to be able to amend and repeal all manner of unacceptable”, comes to us at a time of unique instability employment and equalities legislation through this in modern British politics. Half of Ministers and Bill. It should never be forgotten that our EU membership Conservative MPs want what my noble friend Lady has brought enormous protection to the women of Smith, the Leader of the Opposition, called a this country—their working rights, family rights and “buccaneering Brexit” that hauls us out into the mid- equal rights—much of it to do with the legal underpinning Atlantic, as far away from Europe as possible, and they from the European Union. 1579 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1580

Our EU membership has brought great protections employment law or the Equality Act; alterations to the that now seem to be at risk, because those rights do birds and habitats directives vis-à-vis raptors, squirrels not continue under the Bill with the enhanced status or seabirds, or changes to our nuclear industry? Et cetera, that the legal underpinning from the European Union et cetera. How will one group of Peers know whether has given them for the last 40-odd years. They survive every SI involved is a mere technical adjustment or is in the Bill only in delegated form, as do the equally instead—surreptitiously or inadvertently—a complete important environmental and consumer rights that game-changer? the British people take for granted as part of a safe, Then there is the likely number of SIs—supposedly civilised life. The Government can expect no let-up in more than 1,100. How can one group of Peers or MPs our efforts to make this Bill somehow, against all odds, deal with them all? SIs will be flying at them like work in the interests of the British people as we leave snowflakes on to a car at night. You focus on one Europe, but leaving Europe is an act of extraordinary which immediately melts on the windscreen. Meanwhile, political self-harm for which our grandchildren and another 50 have flown in unnoticed. You are driving their children will not forgive us. your institutional car into the black of night and probably into a snowdrift. This is not good enough. In 1.23 pm my humble view, what is needed in the Bill, as well as Lord Cameron of Dillington (CB): My Lords, it is a changing the word “appropriate” to “necessary”, is a great pleasure to follow the noble Baroness, Lady scrutiny committee with the power to appoint expert Crawley, and indeed a panoply of excellent speakers sub-committees—like our EU Sub-Committees, but over the past two days. It is a well-worn opening made up of Members of both Houses. The committee sentence of after-dinner speakers to say: “As Henry VIII should have the power to propose that some negative said to his wives, I shall not be keeping you long”. I instruments become positive and even recommend, in hope indeed that I will not be keeping your Lordships a few rare cases, that primary legislation is required. for long but, more to the point, as the 129th speaker in Because time is likely to be of the essence in this this debate, I will only focus on the Henry VIII powers process—hence the need to use secondary legislation—I in the Bill. suggest that they should be able to recommend that Like many others, I have serious concerns about the such and such an SI should have a sunset clause. I have powers being taken by Ministers. I have seen forecasts checked with the clerks, who tell me that this is entirely that more than 1,100 SIs could be used in this process. possible. This way, before the sun sets, as it were, there In my field, which is the environment and our countryside, can be time—in certain crucial areas—for primary some 80% of our laws are shaped by, and in some legislation to be properly debated in both Houses. instances controlled by, Brussels, so our countryside We need to aim for the very best of Britain in our and environment, more than any other aspect of our new independence. We all know that Governments cut lives, could be gravely affected by Clauses 7 and 9. It is corners and we must ensure that, for our environment to be hoped that some of the necessary changes to that at least, in the Bill this is made too difficult to contemplate. body of EU controls, judgments and laws concerning the environment can be dealt with in the four Defra 1.28 pm Bills that should come before us before Brexit on animalwelfare,fisheries,agricultureand,mostimportantly, Baroness Sherlock (Lab): My Lords, in a debate full environmental protection. of marvellous speeches, I apologise in advance that In this way, we can deal properly with many of the mine is going to be boring. It is possible to be boring issues involved on the Floor of the House, but we and very important at the same time—I know: I used must get it right. Post Brexit, we must create a new to work in the Treasury. I am going to look at a “brand UK” that exudes quality in every aspect of our specific area but, by the end, this may be a lens lives—our beaches, habitats, rivers, air, soil and, indeed, through which we can look at the Bill as a whole. the rights of our workers and of our children. There I want to look at family law and the law affecting must be no opportunity for the Executive to water families with kids. In doing so, I have been grateful for down this quality agenda. We must think long term some wise and thoughtful briefing from various quarters, and not rely only on the promises of the current including the Children’s Society and the Brexit family Executive. As sure as eggs is eggs, they will change, law group. Family law has a major international and who knows what we will get in their place—of dimension. There are about 140,000 international divorces whatever party. and 1,800 cases of child abduction within the EU I believe that a democracy is only as safe as its every year. The matters at stake cover divorce and institutions are strong. Having Ministers able to bypass maintenance, child contact and child protection, child our institutions and processes is not a good sign. The abduction and the protection of victims of domestic unprecedented powers granted to Ministers could be violence and harassment. dangerous. Brexit and the way this Bill is crafted pose some real I am extremely dubious about the current sifting problems for this area. By importing EU family provisions arrangements proposed by the Leader of the House into our law, this Bill does not change substantive law, yesterday. One committee for the Commons; another but it maintains our obligations without any guarantee for the Lords—what a waste of everyone’s time. What of the reciprocity necessary to make them work. The happens if they disagree? How can any such committee, result is that the Bill shunts us into a one-way street of whichever House, contain all the necessary expertise where the UK is obliged to apply the current provisions, in the various fields involved—fields as diverse as the but the EU 27 will not have to do the same for us licensing of drugs; changes to scientific research, because we will have left. 1581 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1582

[BARONESS SHERLOCK] the Hague conventions, if they are applicable at all. Although there is no effect on our substantive law, The Bill will create confusion as to which laws apply EU family provisions affect our lives in various ways. and when. Families will not know whether or when Imagine a German man, Andreas, married to an English their orders can be enforced and disputes will be woman, Jane, living in Germany with their son, Thomas. slower and more expensive. They are affected in various ways. First, there is What are the alternatives to the options in this Bill? jurisdiction. Imagine that Andreas and Jane separate There are not many.The first is to retain full reciprocity. and Jane comes back to England and petitions for That would almost certainly mean being bound by the divorce in Birmingham, while Andreas petitions in CJEU and its decisions, which Ministers currently Berlin. Thankfully, there is a mechanism to decide reject. It is worth noting that unlike in other areas of which court takes precedence, avoiding expensive parallel law, here the CJEU is dealing only with procedural proceedings. questions, not with substantive law. Every EU state Secondly, there is enforcement. If Jane gets an keeps its own family law.The court can rule on questions order from an English court for maintenance and of interpretation of laws, such as which country decides Andreas will not pay up, Jane can enforce the English a case or the wording of enforcement orders. It does order by applying directly to the court in Germany not change the law by which a country decides who using her English court paperwork, or via the central gets divorced, what maintenance will be granted or authorities. If Jane also has a contact order from an how much contact there will be. English court when Andreas fails to return Thomas Secondly, we could seek a bespoke arrangement. after a summer visit, the EU family law provisions We could try to make a deal with the EU for a new provide enhanced and quicker mechanisms to get him framework for family law co-operation. That would be back. England also gets the final say if, for any reason, slow and difficult and certainly not possible by 2019. Germany will not return Thomas. If Andreas then Even if we end up with no deal and even if we can get gets cross and starts harassing Jane, she can get an rid of the asymmetry, there is still no guarantee that injunction against him in England which is automatically the Hague conventions would apply, leaving us with enforceable in Germany. an unacceptable void. Thirdly, there is co-operation. The stress means I am very worried that Ministers appear to have Jane starts neglecting Thomas and a neighbour gets given no attention to what they will do about this area. worried and alerts social services, at which point Jane I have heard not a single thing telling us what they will disappears to Ireland. Fortunately, the rules on do. By the time we get to Committee—where I intend co-operation mean the two countries can readily share to return to this—I very much hope that the Government information. are in a better position. What will happen to this admittedly rather unhappy I have a final word on children. Children’s charities family post Brexit? We will lose the rules that stop are deeply concerned about whether our law will be parallel divorce proceedings, so with Andreas and sufficiently robust and comprehensive to protect vulnerable Jane both petitioning for divorce, if Andreas files first children post Brexit. For example, not all the provisions in Germany, under this Bill we have to stop proceedings of the EU anti-trafficking directive 2011 were brought here. But if Jane files first, Germany does not have to into domestic law,which will leave real gaps in safeguards, stop its proceedings. Wecould end up with simultaneous for example for unaccompanied minors. cases running in Birmingham and Berlin at vast expense, It is not just trafficking. Noble Lords may remember reaching contradictory decisions on maintenance and the awful case of Northern Irish teenager Ronan contact with no certainty about enforcement. Jane Hughes—just one example of the international nature loses the enhanced provisions that would ensure the of many crimes against children. He killed himself speedy return of Thomas if his dad keeps him in when images he was lured into sharing online were Germany, and our courts lose their final say but would sent to his friends when he would not pay a ransom. have to respect it the other way round. Jane would Last year his blackmailer was finally put away thanks have no ability to enforce any domestic violence injunction to Europol. in Germany. She would have to raise separate litigation These issues do not make headlines, but perhaps there, by herself if she cannot afford lawyers. they should. Whatever the high politics of Brexit, On the rare occasions this has even been touched children in the UK deserve protection and our citizens on, Ministers like to say that there are alternatives. should be able to enforce our family law in Berlin as They cannot point to common law as here we are well as in Birmingham. That is what is at stake. I very talking procedural not substantive law. They might much hope that the Minister will attend to it. cite existing conventions but there is no guarantee that they will apply.There is nothing in place of the domestic violence protection measures. There are no practical 1.34 pm alternatives on divorce. With regard to maintenance Lord Howell of Guildford (Con): My Lords, that and children cases, the relevant Hague conventions was a speech of concentrated expertise, which I certainly offer much weaker protection and narrower provision will not try to follow. For those of us who seek to be in than we have now. the reasonable middle of this very polarised debate, In short, our citizens would be disadvantaged by and who anyway believe we should have fought for lesser provisions. We would have to apply the EU serious and fundamental EU reform before rushing provisions in our law while the EU 27 would have to into bilateral negotiations of any kind, space is rather give our citizens only the secondary protection under tight, narrow and limited. It is difficult to decide which 1583 European Union (Withdrawal) Bill [31 JANUARY 2018] Income Inequality 1584 side is the more unappetising: the extreme Europhiles at the Dispatch Box night after night trying—and who believe, in rather a quaint, old-fashioned way, obviously failing—to explain some of the sillinesses in that it is the UK’s destiny to remain totally tied into this overloaded document, which is far inferior to our the obviously outdated EU integrationist model, fed own protection of rights and our own commitments by daily doses of gloom from the Financial Times, or to the human rights of the citizens of this nation. the extreme Brexiteers in their nirvana of taking control Excitable legal experts seem to have forgotten all of and sovereign independence, regardless of the world’s that. colossal and growing interdependence and connectivity The case for the old 20th century EU integrated and their “dancing on a head of a pin” arguments bloc idea grows weaker every day and the case for a about hard and soft Brexit. new, more flexible and intelligent kind of European What seems not to be very well understood is that co-operation and co-ordination, in the completely the Bill is part of a vast and elaborate process, as my transformed digital and big data age we are now in, noble friend Lord Strathclyde said yesterday. It is one grows stronger. Nothing is static. Patterns and networks course in the long menu of taking powers back from of trade are being revolutionised even while we speak. the EU Commission after all these years, handing The Bill is just one stage in preparing us for these them first to the Government and then back to Parliament totally transformed conditions and the sooner that we and the people. We are trying to transfer four decades allow it through, modestly improved, the better for all. of law, influenced by its Roman and Napoleonic code antecedents, into common law, the law of Britain and 1.41 pm the Commonwealth. We are taking it, so to speak, Sitting suspended. from Napoleon via Henry VIII—neither of them exactly models of democracy—as much as we can to Parliament and the people. Income Inequality I do not fully understand how the legal experts, Question whose voices we have heard, imagine that this colossal enterprise can all be done in one Bill plus a sheaf of 3 pm amendments. I do not understand their ambition. This Asked by Baroness Lister of Burtersett is going to be a task and a continuing struggle for To ask Her Majesty’s Government whether they years to come; in fact, in the age of popular empowerment have a policy goal to reduce income inequality; and it may well intensify. We will certainly need the sort of if so, what is their strategy for achieving that goal. new instruments that the noble Lord, Lord Cameron, was talking about a few minutes ago. Yet we seem to hear impatient voices, and even some constitutional Lord Taylor of Holbeach (Con): My Lords, income experts, calling for every course in the menu to be inequality is lower than it was in 2010. The best way to served and devoured at once—for every stage to be reduce inequality is by getting people into work, and done and sorted. since 2010 we have seen 3 million more people find work as a result. The national living wage has helped We always want to see, and will have to fight for, a to reduce the proportion of full-time jobs that are low better balance of powers between the Executive and paid to the lowest level in at least 20 years. In the long Parliament. However, as some in this House will term, this is the best way to improve living standards remember, it took 20 years to get into the old EU—the and reduce inequality,as well as to boost our productivity European Community, as it was—and, frankly, it is as a nation. bound to take quite a few years to disengage and correct the balance again. Meanwhile, we have a great Baroness Lister of Burtersett (Lab): My Lords, if army of lawyers, judges, academics and, I am afraid, the Minister had used the measure of income inequality some of your Lordships all calling for more legal recommended by the ONS rather than the ONS’s own certainty and more clarity for judges. Of course they less accurate measure, he would not have been able to would say that. We all want certainty, but a bit of paint nearly such a rosy picture, especially if housing patience would be welcome all round, as well as a little costs were taken into account. As it is, inequality is more reading of the works of Karl Popper. I would starting to rise again and is predicted to increase like to hear the word “gradual” coming from the legal massively by 2020 as a result of government policy. authorities a bit more often. What is the phrase? Could the Minister explain how a policy of freezing “A broadening down from precedent to precedent”—is benefits for the worst-off in work, as well as out of that not the tradition on which we have been educated work, to their disadvantage, while cutting taxes to the over hundreds of years? Businessmen are always calling advantage of the better-off, will help to reduce inequality? for more certainty but I have to say that there has always been uncertainty and always will be. The judges Lord Taylor of Holbeach: My Lords, to improve the will just have to do their best, as I am sure they living standards of squeezed households in the short always do. term, the Government will boost incomes for the As for the idea that we transfer back into British low-paid, increasing the national living wage and the law the whole EU Charter of Fundamental Rights, personal allowance. To help to reduce the cost of memories seem to be pitifully short here. Do your living, we are freezing fuel duty and childcare and Lordships not recall how, in our long debates on the tackling housing costs. The core of the problem lies in Lisbon treaty, we showed up clearly all of the charter’s our low productivity as a country, and we have to try inadequacies? I can remember a decade ago standing to tackle this problem in both ways. 1585 Income Inequality [LORDS] NHS: Clinical Negligence 1586

Lord Bassam of Brighton (Lab): I welcome the Lord Davies of Oldham (Lab): My Lords, the Minister noble Lord to his new role. Given that food-bank use invites us to look into his crystal ball, but we can look is set to hit a record high this year, and that a quarter at the book. How does he explain the fact that, over of parents with children under 18 see someone in their the last 10 years, wages have not risen for the average household skip a meal, does the Minister agree that we worker—something which has not happened since need a national measure of household food insecurity Napoleonic times? How does he explain that the Social to address the hunger crisis? Will the Government this Mobility Commission, with the valuable work that it week support the Food Insecurity Bill, which is due to was doing, has resigned en bloc because of government have its Second Reading this Friday in another place? failure to implement its proposals? The Minister has a case to respond to. Lord Taylor of Holbeach: I welcome the development of food banks; I believe that they have provided a very Lord Taylor of Holbeach: My Lords, we are advertising useful service to the community. They are widely for replacements for the Social Mobility Commission, supported on all sides of the House, I would have but I come back to what I said earlier: wages for the thought. I do not know what our attitude will be to the lowest-paid have risen by 7% in real terms since 2015. legislation that has been suggested but, none the less, That is the way to deal with poverty and, indeed, with the truth of the matter is that good eating is often in social mobility. the control of the people who buy the food; too many people eat convenience food. Indeed, there was an Baroness Hollis of Heigham (Lab): My Lords, is the article only the other day about the number of people Minister aware that we, along with Lithuania, are the who have obesity problems because they are not eating most unequal country in Europe? Is he also aware the right sort of food. that, as a result, only Serbia, Romania and Hungary have a higher proportion of children in raw poverty Baroness Lane-Fox of Soho (CB): My Lords, there than this country? Both of these are driven by the are 6 million adults in the lowest socioeconomic groups Government’s reluctance to tackle inequality. without access to the internet or the skills to use it. Yet we know that, on average, the lowest-income households Lord Taylor of Holbeach: No, that is not the case. I can save over £170 a year by being connected. I am so am afraid I must argue with the figures the noble happy to hear the Minister mention jobs because we Baroness has presented to the House. This country is also know that 90% of new jobs are now advertised the fifth-worst. only online. What specific actions are the Government taking to help the most vulnerable communities get access to the internet? NHS: Clinical Negligence Question Lord Taylor of Holbeach: Perhaps it would help the noble Baroness to know that we had record tech 3.09 pm investment in the UK last year. Asked by Lord Sharkey Lord Hayward (Con): My Lords, on another aspect To ask Her Majesty’s Government what progress of income inequality, can my noble friend confirm they have made in reducing (1) the amount set aside that, in an effort to reduce that inequality, he will have in NHS budgets for clinical negligence claims, and discussions with the BBC? (2) the annual level of payment for such claims.

Lord Taylor of Holbeach: It is as a result of our TheParliamentaryUnder-Secretaryof State,Department publishing the salaries of above £150,000 in the public of Health and Social Care (Lord O’Shaughnessy) (Con): domain that this whole business has come out. The My Lords, the Government are committed to tackling Government deserve some credit for having done that. clinical negligence costs. To do so, we have proposed to fix the amount that legal firms can recover from clinical The Archbishop of York: My Lords, does the noble negligence claims, proposed a scheme so that families Lord agree with Wilkinson and Pickett in The Spirit whose babies experience severe, avoidable birth injuries Level that equal societies, in terms of income, are have an alternative to lengthy court proceedings, and much happier societies and that income inequality brought forward our ambition to halve maternal and leads people not to be happy? Does he further agree neonatal deaths, brain injuries and stillbirths from that being in work does not mean that you have 2030 to 2025. income equality? We have a lot of hard-pressed families on poverty wages, hence the food banks. What are the Lord Sharkey (LD): I thank the Minister for that Government going to do to create this income equality, Answer. Last year, the NHS paid out £1.7 billion in where we can all become happier people? settlements for negligence claims—a 15% increase on the year before. A substantial part of that enormous Lord Taylor of Holbeach: I am a bit of an old-fashioned amount was intended for the provision of private person. I believe that the path to happiness is being sector care. That is because Section 2(4) of the Law able to create some security for yourself and your Reform (Personal Injuries) Act 1948 requires claims to family, having a job and being in work. We have record be calculated on the basis of private healthcare, not employment in this country at the moment. the NHS. Allowing claims to be made on the basis of 1587 NHS: Clinical Negligence [31 JANUARY 2018] NHS: Clinical Negligence 1588 costs to the NHS would dramatically reduce costs. the annual costs to the NHS in England of settling Does the Minister agree that repealing Section 2(4) clinical negligence claims was equivalent to training would save the NHS an enormous amount of money? 6,500 doctors. That is expected to double by 2023, so the noble Lord is quite right that this is a terrible Lord O’Shaughnessy: I recognise the issue the noble drain. I am very pleased to hear that the Government Lord has raised; it has been raised by a number of have plans to reduce the number of claims. Have they people who are concerned about and interested in this included taking into account the recommendations in issue, as we all are. The problems are significant. The the PAC report published at the end of last year? annual costs of dealing with these injuries and other issues has quadrupled over the last 10 years. That is Lord O’Shaughnessy: We absolutely have. Indeed, the scale of what we are dealing with. We have to the PAC investigation and the National Audit Office act—indeed, the National Audit Office has implored report on this issue are very thorough and looked at us to act. It is one of the issues we are considering as the causes and drivers behind it. One is increased NHS part of a cross-government strategy that will report in activity—not worse safety but the fact that the NHS is September. I am not in a position to give more detail doing more. The investigation also looked at the legal at this stage, but it is an area we are looking at. environment and some of the changes that have occurred. The noble Baroness is right: a number of firms offer Lord Faulks (Con): My Lords, I have acted for the these services. That is important for access to justice NHS and the MDU on a number of occasions. However, but we also need to fix the costs that they can claim so perhaps the Minister will help me. One of the reasons that we get this budget under control. why these claims have increased in value is because of the rather mysterious decision by the Government to alter the discount rate, which has often resulted in the Lord Patel (CB): My Lords, the statistics show that doubling of the size of claims. Can he tell the House 46% of the litigation cases involve misdiagnosis and whether the Government are seriously considering 34% involve surgical errors. However, the largest placing a cap or tariff on damages, as is often done in settlements are for obstetric cases, particularly those other jurisdictions? That would not only clarify the related to babies who have suffered brain damage at amount of damages obtained, but significantly reduce birth. The important thing is to prevent these accidents the legal costs involved in such disputes. occurring. The key issue here is better and continuous training in interpreting foetal heartrate patterns during Lord O’Shaughnessy: The noble Lord knows more labour. That is what we should focus on—preventing about this issue than anyone in the House, I think. The these cases happening. issue of reform to tort law is difficult. We have to be very careful when stepping across the idea of full Lord O’Shaughnessy: I completely agree with the compensation. It is one of the issues we are looking at. noble Lord and make two points in response. He will Other countries, such as Australia, have looked at this know of the Secretary of State’s great passion for this and we are considering it as part of the cross-government area and of the maternity safety training funding and strategy. As I said, we will report by September this other training funding. From April, we will introduce year on our plans in this area. the healthcare safety investigation branch, which will investigate each of the 1,000 incidents noted by the Baroness Brinton (LD): My Lords, it is estimated Each Baby Counts project which occur at birth, whether that a relatively small number of clinical negligence brain damage or neonatal death, precisely so that we cases end up as claims filed with the NHS. Has the can learn from that experience and make sure that NHS undertaken additional efforts to understand what those who provide these services are properly trained factors cause certain cases to be escalated, in particular to avoid these incidents wherever humanly possible. the attitude of lawyers in the NHS and trusts? How can escalation be prevented and, if so, when might the results be published? Lord Ribeiro (Con): My Lords, we need to do something to tackle this issue much more urgently as Lord O’Shaughnessy: I point the noble Baroness in the total cost of the litigation in the pipeline is some the direction of a five-year strategy that was published £65 billion—half the NHS budget. Until and unless by NHS Resolution, the body that acts on behalf of we do something about changing Section 2(4) of the what used to be the NHS Litigation Authority. The relevant Act we will have a continuing problem with strategy looked at many issues, not only how we patients claiming for private care when they should can prevent escalation. One of the drivers of cost is have their care provided by the NHS. unsuccessful claims; more of those are going on. It also looked at how we can reduce incidents in the first Lord O’Shaughnessy: I agree with my noble friend; place and learn from deaths and injury throughout the this is an issue, not least because, when that Act was system, so that we can start to reduce the burden brought in, the NHS was a very different creature and overall. did not offer the extensive range of care that it does now. We need to make sure that we are not effectively Baroness Thornton (Lab): My Lords, it is telling paying twice. However, this is a difficult and complex that if you google “clinical negligence”, the first four legal issue. It is important that we take our time to or five pages that come up are companies offering investigate how we tackle it properly so that those who their services to support people making claims.According are unfortunately affected by poor care are not put at to the Medical Protection Society report last year, a disadvantage for the rest of their lives. 1589 Brexit: Transition Period [LORDS] Brexit: Transition Period 1590

Brexit: Transition Period all stages of Brexit negotiations, including withdrawal, Question transition, implementation and any future relationships— giving them, of course, the choice of remain, which is 3.17 pm the best. Asked by Lord Lennie Lord Callanan: The Liberals have obviously forgotten To ask Her Majesty’s Government what are their all about the referendum, but we will put that to one objectives for the Brexit transition period. side. As an ex-member of the European Parliament, the noble Baroness will know that it is obviously illegal for the EU to sign trade deals with a country The Minister of State, Department for Exiting the that is still a member. We need to be a third-party European Union (Lord Callanan) (Con): My Lords, country, and we need also during the period to have both the UK and the EU are in agreement that a the ability to agree and sign trade deals with other strictly time-limited period would be mutually beneficial. countries. That is why we need an implementation An implementation period forms a key part of a period. Article 50 says that we will leave the EU on smooth and orderly exit from the EU. It would provide 29 March next year. That is what will happen. time for government, people and businesses to adjust to the new arrangements and prevent businesses in both the UK and Europe having to make decisions Lord Hannay of Chiswick (CB): My Lords, will the before they know the shape of our future partnerships. Minister say what will happen if the period chosen by the EU and ourselves for the standstill period turns out to be insufficient for the negotiation of all the Lord Lennie (Lab): This not a bridge to a clear details and the implementation of the new partnership? destination but a gangplank to thin air—I think that Will that not simply postpone the cliff edge by 19 months was the quote. Secretary of State David Davis said in or two years, and will it not then subject business to evidence to the Lords European Union Committee two wrenching changes, where one is the maximum this week that during transition things would not be that should be even thought about? exactly the same but very, very similar to what they are now. Will the Minister explain to the House what the very, very similar differences are that we can expect Lord Callanan: The reason that we are doing this is during the transition period? to have one set of changes. I totally agree with the noble Lord. It is very important that this period is Lord Callanan: The two main differences, and the strictly time limited, and both we and the EU agree reason that we need to construct an implementation that roughly two years is the appropriate period. period are, first, the ability for us to sign and agree trade deals with third countries, and, secondly, to Lord Tomlinson (Lab): My Lords, what part of the agree and sign a trade deal with the EU, which is Question, “What are their objectives?”, does the Minister legally impossible as long as we are a member. not understand? He has signally failed to answer the Question about the objectives of the Government. Lord Bridges of Headley (Con): My Lords, I hate to Would he agree with me that deliberately to continue say it but my noble friend continues to refer to this not to give an account to Parliament of the objectives period as an “implementation period”. For there to be that we are supposed to be supporting the Government an implementation period there needs to be a treaty to in is in fact a breach of the House’s right and amounts implement. Under my reading of Article 50, it is to a gross contempt of Parliament? impossible for us to negotiate a treaty during the process of Article 50. We can conclude that only after Lord Callanan: The Question was about the objectives March 2019. Does my noble friend agree that that is of the implementation period, which I think I answered the case and that we should stop using the phrase fully. If the noble Lord is referring to the objectives of “implementation period”? It is a transition during the renegotiation, the Prime Minister set those out which we will negotiate the final treaty. very clearly in her Florence speech and in her Lancaster House speech. Lord Callanan: I thank my noble friend for his helpful question. As he well knows, Article 50 makes it Baroness Smith of Basildon (Lab): My Lords, I do clear that the withdrawal agreement needs to take have to press the Minister on this point. He referred account of the future relationship so that we will again to the implementation period. The Question is know the terms of our new partnership with the EU more accurately about the transition period. I think by the time of our exit. This is the basis on which we that is understood by noble Lords. What are the have to work. Government’s objectives? The Prime Minister was quite clear previously when she said that access to one Baroness Ludford (LD): My Lords, given that the another’s markets will continue on the current terms, Government do not have a clue where they are going, maintaining on current terms the customs union and would it not be a lot less dangerous to seek to extend single market, and that we will also continue to take Article 50 and stay longer in the EU instead of sticking part in existing security measures. Can he confirm that to a dogmatic target exit date? That would allow both those are still the Government’s intentions and objectives Parliament and the people to take control and shape for the transition period? 1591 Brexit: Transition Period [31 JANUARY 2018] Prisons: Careers Guidance 1592

Lord Callanan: Yes. The Question was, “What are of the service being provided indicated that custody their objectives for the Brexit transition period?”. I contract performance showed significant inconsistencies answered what our objectives for the Brexit transition of service between institutions.As regards its replacement period were. The noble Lord then asked me about the going forward, I note, for example, that community wider renegotiation objectives, and I answered that—but rehabilitation companies already work with every prisoner of course the policy remains as set out by the Prime 12 weeks prior to release to ensure a personalised plan Minister. with respect to employment, and Department for Work and Pensions prison work coaches also work in this field. Indeed, it has been noted, particularly in 2016 by Baroness McIntosh of Pickering (Con): If we are Dame Sally Coates in her review of prison education, leaving the single market and the customs union, as we that there is overlap and duplication within the current have been consistently told by the Prime Minister that arrangements for supporting prisoners. we are, at 11 pm on 29 March, how can we carry on trading on the same conditions as we currently do? Lord Dholakia (LD): My Lords, I declare an interest as in the register. A number of organisations provide Lord Callanan: We are leaving the single market services which assist in the rehabilitation of offenders. and the customs union on 29 March last year—I mean Does the Minister agree that to remove the National next year; I will have to do better in my speech later. Careers Service will add to the overcrowding problem, That remains the position, but we have said that if we thus increasing reoffending rates, which are now at as can negotiate an implementation period, then in the much as 70% in young offender institutions? withdrawal agreement which will be put before your Lordships later this year, we will replicate the provisions Lord Keen of Elie: My Lords, we do not consider of our current membership. So we will be out of it but that this will contribute to reoffending rates. One of we will replicate the provisions in an identical way for the issues we wish to address with regard to future a strictly time-limited implementation period. education contracts is the development of greater autonomy and governor empowerment, which will lead to local commissioning of these services and Prisons: Careers Guidance which we believe will lead to an improvement in them. Question Lord Ramsbotham (CB): My Lords, will the internal 3.24 pm review that the Minister has just mentioned include looking at organisations which offer the ability to Asked by Lord Beecham search for jobs online? There is an organisation called To ask Her Majesty’s Government why they have Prosper 4, which at the moment has 3,000 jobs on cancelled the contract of the National Careers Service offer to ex-prisoners but only 200 prisoner takers, to provide careers guidance in prisons. because the Ministry of Justice and HMPPS seem to refuse to use online job-seeking.

The Advocate-General for Scotland (Lord Keen of Lord Keen of Elie: My Lords, perhaps I should Elie) (Con): My Lords, the custodial element of the clarify. I referred to an internal review that had been National Careers Service contract has not been cancelled; carried out to determine the standard of service being it will reach its expiry date on 31 March 2018. We are provided under the National Careers Service in-custody reviewing options for alternative provision as part of contract, and it was that which led to the decision to wider employment services.Weare committed to providing let the contract terminate at its natural point in training and advice to deliver effective rehabilitation March 2018. On the provision of alternative services, for the needs of offenders. and indeed online services, we are of course open to submissions about such a matter, and it will be an Lord Beecham (Lab): My Lords, job coaches, who aspect of the governor empowerment proposals that are likely to replace the present people who deal with we are taking forward. prisoners, are not people who visit just before release. Others coming into this position will not provide as Lord Watts (Lab): My Lords, can the Government good a service as the career advisers, who work with indicate how many people they believe who were released prisoners over a considerable time. Can the Minister from prison will be in full-time employment 12 months say what consultations have taken place on this decision after release? and whether the results will be published in due course? Whyhave the Government refused to provide information Lord Keen of Elie: I do not have those figures as to the likely number of advisers who will no longer immediately to hand, but I am content to write to the be employed? noble Lord, outlining such figures as we have in that regard, and I will place a copy of the letter in the Lord Keen of Elie: My Lords, the contract for Library. the in-custody National Careers Service element could have been extended by a further period of six Lord Faulks (Con): Would the Minister agree with months maximum from 31 March 2018. A decision me that one of the encouraging features about jobs was made not to extend it because an internal review and careers for prisoners is the number of times employers 1593 Prisons: Careers Guidance[LORDS] European Union (Withdrawal) Bill 1594

[LORD FAULKS] European Union (Withdrawal) Bill from the private sector engage prisoners, while they Second Reading (2nd Day) (Continued) are still in prison, who turn out to be satisfactory employees who then continue that employment when 3.32 pm they leave? Lord Hague of Richmond (Con): My Lords, I was going to say it was a pleasure to open this debate Lord Keen of Elie: My Lords, in response to the again, but I hope my noble friend Lord Bates, who has question from my noble friend, I agree that there have given 20 years of strong public service, will resume his been notable successes in this area, and we should place on the Front Bench. appreciate the work done by some particular employers I am the 132nd speaker in this debate. I declare my in this regard. There is one in particular where present relevant interests as the chair of a think tank that indications are that something like 10% of their workforce receives EU grants, and as an adviser to businesses on are former inmates. If we can encourage other employers international affairs. It is my ambition in the next six to take this step forward, we can help to reduce minutes to make two fresh arguments about the Bill. I recidivism in the prison population. am not sure if it is possible to do so at this stage, but each arises from the two areas of broad consensus— Baroness McIntosh of Hudnall (Lab): My Lords, reluctant consensus—that exist in this debate. The does the Minister agree that one of the biggest barriers first is that so many agree, however reluctantly, that it to employment is poor literacy skills? Can he say how is necessary to pass a Bill that provides for withdrawing many people going into prison are functionally illiterate, from the EU and the continuity and amendment of and how many fewer are not when they come out? law, and that such a Bill should have its Second Reading. The other is that the Bill has not arrived in this House in a perfect, finished form, as Ministers Lord Keen of Elie: My Lords, it is unfortunate but themselves are ready to admit, and are quite right to true that a very large proportion of those going into do so. prison suffer mental health problems or literacy issues. On the first point, it has always been my position, We attempt to address those during their period in as someone who voted to remain, that the best posture prison. Some improvement is achieved; it is not as after the disappointment of the referendum, is for the great, perhaps, as we would hope, but within our Government, Parliament and country to make a success prisons there is a difficult cohort as far as education of it, or limit the damage, depending on your point of and literacy are concerned. view. That therefore brings me into immediate conflict with the amendment moved by the noble Lord, Lord Adonis, who is in his place and for whom I have Personal Statement enormous respect. He made a speech that could have been—and maybe was—delivered in the referendum 3.31 pm campaign, putting the democratic argument for another The Minister of State, Department for International referendum. Of course, there is always a democratic Development (Lord Bates) (Con): My Lords, with the argument for another say about a controversial matter, leave of the House, I offer my sincere apologies to the but that has to be weighed against the democratic noble Baroness, Lady Lister, for my discourtesy in not force of the argument that people were told in June 2016 being in my place to answer her Question on a very by all sides that their vote would be decisive. They important matter at the beginning of Questions. turned out in numbers unusual even for a general election. More people voted to leave the European During the five years in which it has been my Union than have ever voted for any Government in the privilege to answer Questions from this Dispatch Box history of the United Kingdom. on behalf of the Government, I have always believed that we should rise to the highest possible standards of Therefore, we have to subject the case for another courtesy and respect in responding to the legitimate referendum at the conclusion of negotiations to a questions of the legislature. I am thoroughly ashamed critical test and think of the consequences. What at not having been in my place, and therefore I shall be would happen if the people of the country, having offering my resignation to the Prime Minister with voted with that democratic force to leave the EU, then immediate effect. voted not to approve an agreement on how to leave the European Union? Would it mean that we would leave anyway with no deal under Article 50 or would it Noble Lords: No! mean that the Government would have to go back and negotiate another deal? Would there not then be a very Baroness Smith of Basildon (Lab): I hope the noble valid case to put that to, yes, another referendum—a Baroness the Leader of the House and the noble Lord third referendum—or would such a referendum cancel the Chief Whip will have heard the House. An apology the result of the earlier referendum? Would there then from the noble Lord, Lord Bates, is perfectly sufficient. not be an overwhelming case for people to campaign to reinstate the result of the June 2016 referendum? They would have a lot of justification in fighting such Noble Lords: Hear, hear! a campaign. I cannot believe that it is in the national interest to Baroness Smith of Basildon: It was a minor discourtesy, get on to such a referendum merry-go-round, whatever of which any of us can be guilty on occasion. point of view we fought for in the referendum campaign. 1595 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1596

We could have made a success of the United Kingdom taken to keep them in place. But that does not mean in the European Union and we can make a success, just any Bill. This legislation is so serious and so with some cost and upheaval, of being outside the important—for ourselves, for our citizens, for our European Union, but we cannot possibly make a children—that we have to get it right, and getting a success of being in a national state of bewilderment complicated and important piece of legislation right is about when we are going to have another referendum one of the things that this House does particularly and which direction we are going in. well. We need to make it fit for purpose, as my noble Therefore, I believe that the arguments that the friend Lady Smith of Basildon said, or—in the rather noble Lord, Lord Adonis, put—very well, of course— more graphic terms of the noble Baroness, Lady must be weighed against consideration of the risks Boothroyd—copper-bottomed, ironclad and storm-proof. involved in putting forward such a proposition and of She is absolutely right, because when the Bill becomes the extra difficulty that would be placed on negotiating an Act it will have to withstand many storms from an agreement to leave if another referendum were to citizens hoping that it still delivers protections for be held. Article 50 is not designed for a change of the their rights, and we must not disappoint them; and decision towards the end of the process, and it would from lawyers, and I speak as one, hoping to thwart plunge the country into a long and bitter dispute and them or to provide even more. division greater than anything we have seen so far. I have never before heard a debate in which so many My second point relates to the unfinished nature of Lords from all parties and from none have criticised a the Bill. Here, I have my only note of criticism of my Bill for its technical deficiencies, its assault on our colleagues in Her Majesty’s Government, who I think constitution, its assault on parliamentary sovereignty, are doing a good job in trying to implement the its extraordinary switch of power to Ministers, the referendum outcome. In December, they achieved an jeopardy it creates to our devolution settlement and entirely reasonable agreement at the interim stage in the legal uncertainty it creates, not to mention the risk very difficult circumstances. However, straight after it poses to the peace in Ireland and the Good Friday the referendum some of us argued for—shall I say?—a agreement. Whatever the differences on other matters— warmer embrace of parliamentary scrutiny than the leave or remain, a second referendum or not—there Government have sometimes shown, including a vote seems to be a wide measure of agreement that the Bill, on Article 50 at an early stage. Had they done so, they as it stands, does not do what is required to make it fit would not have ended up being overruled in the Supreme for purpose. Wanting to make it fit for purpose is not Court. Therefore, I hope that it will be possible to putting a spanner in the works. It is not frustrating the maintain a new enthusiasm for that scrutiny, as shown Bill or the people’s will. The noble Baroness, Lady in amendments made in the other place. Altmann, was right to make that point. So there will In my determination to come up with a fresh point, be many amendments that we will have to consider, I wish to add to the list of reasonable points that have such as dropping the word “appropriate” in many been made about the legislation. Clause 9 now states, places for something much tighter.I hope the Government against the Government’s objections, that regulations heard the powerful challenge to it from the noble made for implementing the withdrawal agreement must be, Lord, Lord Wilson of Dinton—who as a former Cabinet “subject to the prior enactment of a statute … approving the final Secretary and, indeed, Permanent Secretary of the terms of withdrawal”. most legislating department of all, the Home Office, However, 10 lines later it says: knows a thing or two about legislation—and his comments “No regulations may be made … after exit day”. on what Ministers might do and delegated powers. Given the tendency of EU regulations to go over the Indeed, I hope they heard the comments of the noble time allotted and for parliamentary proceedings to fill Lord, Lord Bichard, with his experience in local and the time allotted, the gap between those two events central government. might be measured in days. Therefore that is another piece of legislation, along with others that have been It has been a privilege to hear so many excellent mentioned in this debate, to which further thought speeches and outstanding contributions, such as those should be given. So I hope Ministers will continue the from the noble Lords, Lord Higgins and Lord Patten robust implementation of the outcome of the referendum, of Barnes, and the noble Baroness, Lady Boothroyd, will set forth the arguments against a referendum not to mention those from this side, such as the noble merry-go-round that might never end and is not in the Lords, Lord Liddle and Lord Judd—as well as some national interest, and will embrace the parliamentary unforgettable images, such as the gangplank into thin scrutiny and sovereignty that was surely meant to be air of the noble Lord, Lord Bridges; the nervous one of the upsides of leaving the European Union in maiden aunts of the noble Lord, Lord Lisvane, settling the first place. down to a Quentin Tarantino movie; or the rather worrying image conjured up by the noble Lord, Lord Cormack, of somebody—and I am not quite sure how many people—getting into a bath to sing. But to make 3.39 pm this Bill fit for purpose requires in my mind at least Lord Goldsmith (Lab): My Lords, we need a Bill to three objectives: to make sure there is legal certainty maintain within law the protections and the continuity after the Bill is passed; to ensure that protections for that we have. The decision to leave the European the people, workers and women of this country, and Union having been made—whatever one thinks of everyone else, are not diminished—I pay tribute here it—the consequence will be that many laws on which to my noble friend Lady Crawley for rightly pointing we presently depend will fall away unless steps are out how European law has protected women; and, 1597 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1598

[LORD GOLDSMITH] enumerated by, for example, the Joint Committee on thirdly, to do so in a way which maintains the critical Human Rights in the commentary in its report, Legislative elements of our constitution, including devolution Scrutiny: The EU (Withdrawal) Bill: A Right by Right and, above all, the sovereignty of Parliament. Analysis. I respectfully commend that to noble Lords. The damage this Bill will do to our constitution, if Six powerful reasons are given why we need to keep not significantly amended, has been powerfully described the charter. by a number of noble Lords and in the brilliant report According to the Guardian, one of the new Brexit of our Constitution Committee. They are right to say Ministers, Suella Fernandes, has said that exiting the that this Bill, as it stands, is constitutionally unacceptable, EU Charter of Fundamental Rights would “avoid” including the largest transfer of power, as the noble extra protections. If that is what is happening, that is Lord, Lord Lisvane, said. They are right to say that it not maintaining the protections which currently exist risks undermining legal certainty in a number of ways. in this country. Even if it were right that the protections I want to say, in the short time I have, a word or two add nothing, why remove them? It will mean that the about the European Charter of Fundamental Rights. rights in the charter from which we and our fellow I declare an interest in that I was, as many Members of citizens should benefit will be less accessible and less the House will know, the representative of the Prime visible. That is because making rights visible and Minister—in fact, the United Kingdom Government accessible was one of the key purposes of the charter. representative—in the negotiation of the charter, so I It would be mean-spirited to remove it. To make a had a very close involvement in its drafting. A number change in this Bill to reduce the visibility and accessibility of other Members of your Lordships’ House were also of rights, even if eventually they can all be found involved. The noble Lord, Lord Bowness, was a somewhere else is—I say it again—mean-spirited. Having representative of the House with my noble friend and celebrating rights, not hiding them but being Lady Howells of St Davids as his alternate. The noble proud of them, is the mark of a good, decent culture. Lord, Lord Kirkhope, was a Member of the European That is the sort of culture and country in which I want Parliament delegation, while the noble Lord, Lord my children and grandchildren to grow up. Chidgey,was at the time an alternate Member representing the House of Commons. I mention those noble Lords 3.48 pm not to share with them any of the criticisms that have Lord Beith (LD): My Lords, it is a pleasure to been made of the charter, but to illustrate something follow the noble and learned Lord, Lord Goldsmith, that is not often recalled about it. It was drawn up by a and the noble Lord, Lord Hague of Richmond. Although wide body representing Parliaments, the European I do not agree with the picture he painted of the Union institutions and Governments. multiple referendum scenario, I am inclined to think I need also to declare that I have spoken and that we would all be better off if the Prime Minister written many times on the charter because of my close had persuaded him to return to the Foreign Office. involvement with its drafting. I have no doubt that during the coming debates, some of what I said or Noble Lords: Hear, hear! have written will be pushed back to me, because it is the case that we in the United Kingdom were anxious Lord Beith: The purpose of this Bill is to provide to avoid confusion with other rights, in particular the the legal mechanism to ensure that if we leave the European Convention on Human Rights, and so European Union, we do so without leaving a huge emphasised the limited role of the charter. But that hole in our law. However, we are having to consider it was then and a lot has happened since. The charter has when we have no idea of what our future relationship been relied on in national and supranational courts, it with the rest of Europe will be and we have a Cabinet has been talked about a great deal, and in Committee that cannot agree on what that relationship should be. we will have to look at some of this. We need to Moreover, the Bill as drafted is incapable of carrying remember that the rights in the charter do not derive out its purpose without leaving a mess of legal uncertainty only from the ECHR, as is sometimes thought, but for the courts to sort out, without giving sweeping from a number of sources, including EU law as well as powers to Ministers, without undermining the sovereignty general principles of law which have no other individual of Parliament and without undermining the devolution legislative base. It also adds important remedies which settlement, the Good Friday agreement and the future do not otherwise exist. integrity of the United Kingdom. All that is in addition That brings me to a point made by a number of to the damage that Brexit will do to the UK economy noble Lords,including the noble Baroness,Lady D’Souza, and to European common endeavour on issues such as my noble friends Lady Whitaker and Lady Blackstone, security, judicial co-operation and the environment. and by the noble Lord, Lord Warner. Why are the That is also in addition to the damage that leaving the Government so determined that the one element of customs union and the single market will do to my protection that will not be kept in place after the Bill own region, the north-east of England, with its strengths has been passed is the Charter of Fundamental Rights? in the motor industry, train building, pharmaceuticals, They say that there is no need because all the rights are agriculture and its universities. protected in any event. If that is so, what is the harm in As this process staggers on, the demand for the keeping it in place? If it is not the case and removing eventual terms to be put to the British people will the charter will come, as many people believe, to grow. In the meantime, however, let us get the Bill diminish the protections they currently have, that would right; let us try to make sure that it does not further be a bad turn. In fact there are a number of good embed undemocratic practices, ambiguous laws and reasons why we need to keep the charter—reasons overcentralised government. 1599 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1600

My priorities for the task are those of the Constitution 3.53 pm Committee, on which I have the honour to serve in the Baroness Campbell of Surbiton (CB): My Lords, I company of some of the most expert and diligent thank the Minister for allowing me to go before the Members of this House. There is a very convenient set end of the debate, which allows me to participate in of potted biographies of us all in Monday’s Daily this really important discussion. This is a vast area, so Mail, in which we are named not as “enemies of the I have chosen to confine my comments to the implications people” but as “The peers trying to slam the brakes on of this Bill for Britain’s 12 million disabled people. Brexit”. In this task, however, that is not what we are doing: we are trying to fix the steering and get the Bill Disabled people in Britain have benefited from through its MOT test. some of the best equality and human rights legislation in the world. Indeed, Britain is a world leader. A We should first be getting the task of the courts significant part of that is grounded in EU law, and the manageable and the sovereignty of Parliament clearer EU has been at the forefront of measures to enhance by treating retained European law as primary legislation. accessibility for disabled people, such as special assistance Why a Brexit Government want to confuse the issue at airports, web accessibility, accessible goods and by retaining the concept of the supremacy of EU law services and manufactured goods. in the Bill puzzles me. Disabled people are right to be concerned that those benefits should not be lost or watered down Secondly, we must secure effective parliamentary when the UK leaves the EU, as countless organisations, control over the mass of delegated legislation which such as Scope, Disability Rights UK, Mencap and will flow from this Bill, by more narrowly defining its others have impressed on me. They have fought very scope and by giving the House the power to determine, hard to gain some measure of equality, and there are not merely to advise on, what level of scrutiny it still too many instances of human rights violations requires. This is not just about Henry VIII powers. It against disabled people in Britain in the 21st century. extends to other statutory instruments, which can, for As so many noble Lords do, I too have deep concerns instance, set up new public bodies. Such an instrument about the sweeping powers the Bill gives Ministers to would not be open to amendment, so the House could amend or repeal legislation, with inadequate safeguards be presented with a new health or environment regulator and scrutiny by Parliament. The Government have and be unable to insist that it was more independent said that delegated powers will not be used to make or had a better defined remit. significant policy changes and that equality rights protections will be maintained. But this is not reflected My third objective is to see that Clause 11 is amended in the Bill so far and it needs an explicit commitment so that it conforms to the devolution settlement. As to non-regression. I strongly caution against measures drafted, the Bill allows the UK Government to hold which allow delegated powers to change any equality on to powers which should be passing directly to the or human rights laws. Having been personally involved devolved Governments. There may indeed be a need in developing advice, information and detail on disability for common frameworks in some fields, but as it equality laws in this country for decades, I would be stands these would not be discussed on an equal basis. extremely alarmed if they could be changed other UK Ministers could say, “We will devolve the powers, than by primary legislation. When delegated powers but only if you accept our view on what the common are used in other cases, the Minister should specifically framework should include”. The power of UK Ministers confirm that they will not affect equality or human to change the content of legislation previously enacted rights. by devolved Parliaments is an offence against the My second concern is, I am afraid, one which many principles of devolution. I have no idea why Ministers others have: with the exclusion of the European Charter have not so far delivered on their promise to amend of Fundamental Rights. The Government claim it this clause, but we need to see whether what they adds nothing that is not covered elsewhere but an propose is adequate and whether they have got the independent QC, instructed by the EHRC, has said message that this House has delivered loud and clear. that its exclusion would lead to a “significant weakening” of human rights protection in the UK. The Joint Finally, I remain puzzled—or should I say mistrustful Committee on Human Rights has just published its —about the position of Brexit hardliners. They say report, as others have also said, commenting on the that they want to bring power back to this Parliament— Government’s analysis of the charter’s provisions. It this sovereign Parliament. This sovereign Parliament, shows all too clearly that exclusion of the charter will however, is entitled to insist that Brexit, if it happens, result in legal uncertainty, which is likely to undermine does not become an accretion of power by Ministers human rights protection. without adequate parliamentary control. Furthermore, The charter contains some rights that are not replicated this sovereign Parliament is entitled, if it chooses, to elsewhere, such as Article 26, which helps give effect to insist that if we do leave the European Union we disabled people’s independence and participation in nevertheless seek to remain in the customs union and community life. It helps me to speak in this debate. the single market, for the sake of British business and Many charter rights, which are based on general principles British jobs. Moreover, this sovereign Parliament, once of EU law, will no longer be enforceable: for instance, the terms of any British exit are known and the reality Article 1 on “Human dignity”. I find this deeply of it becomes clear, is entitled—if it wants to—to seek worrying. The charter has helped to interpret how the the opinion of the British people as to whether this is principles of EU law operate. It provides a really what they want. important framework for protecting equality, fairness 1601 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1602

[BARONESS CAMPBELL OF SURBITON] Administrations are fully involved in the Brexit and human dignity, which I believe will be weakened if negotiations and process as we go on. It is important it is excluded. Given that the UN Convention on the that we give a clear signal that that is going to happen Rights of Persons with Disabilities is still not incorporated by seeking and securing agreement between all parties into UK law, this is no time to risk erosion of our involved on this fundamental amendment. We have an rights. Excluding the charter is not only about the loss opportunity to do so: I know that Her Majesty’s of rights. Victims of abuses have stronger remedies Government are working very hard to do this. I was under the charter than under the Human Rights Act. also very encouraged by the briefing for Peers from the At best the demise of the charter will create uncertainty Scottish and Welsh Governments, which showed that and confusion, contrary to the Bill’s intention. It must they were fully engaged and optimistic about the outcome’s be retained. framework agreements between themselves and the Equality and rights for everyone are of paramount UK Government. This withdrawal Bill—with the importance to building a fair and just society—a necessary amendment—offers us an opportunity as a society that works for all. I intend to do my utmost to House and as a Government to ensure that people help the Government ensure that these essential rights understand that the devolution settlement is safe in a are not lost under the Bill, and I will support amendments Brexit UK, and that the devolved Governments will be to achieve that aim. fully involved in the process of leaving the EU.

3.59 pm 4.03 pm Lord McInnes of Kilwinning (Con): My Lords, I do Lord Grocott (Lab): My Lords, one thing on which not intend to detain your Lordships very long by my we are all agreed is that this is a hugely important and remarks. Like many others in your Lordships’ House, necessary Bill if we are to avoid any kind of legal cliff I voted to remain. One of my key reasons for doing so edge. For me, it possesses a very important characteristic was my fear that any leave vote would undermine the that is sadly all too rare in most of the legislation that integrity of our United Kingdom. I should have had comes before this House. The test that it passes is that, more faith in my fellow Scots because, more than a for all its complexity and weaknesses, it is crystal clear year on, it is now clear that the union has not been in its central purpose and objective. It is designed to undermined in Scotland by the vote of the United ensure that this Parliament, of which we are privileged Kingdom to leave the EU but that, in fact, the entire to be Members, will restore to itself the full authority to United Kingdom will leave the EU next year. make the laws which the British public are obliged to My issue is how this Bill can be improved in respect observe. If the people do not like the laws passed by of Clause 11 and the devolution settlement in our MPs, then they can remove them in a general election. United Kingdom. I can fully understand why, in Clause That is at the heart of our parliamentary system: a 11, there was an intention when the Bill was drafted to Government accountable to the people through a ensure the integrity of the single UK market, which is directly elected House of Commons. For me, the so important for our whole United Kingdom and sovereignty of Parliament is a golden principle which especially for Scotland. For Scotland, it is four times was severely compromised by the European Communities larger than the EU market, something that is often Act and about which we have been careless for far too underestimated. As my noble friend the Leader of the long. House said yesterday, maintaining that UK market is Surprisingly, I found myself agreeing very much absolutely essential to the future of the United Kingdom. with the noble Lord, Lord Beith, in his view that However, it is clear that perception is reality. As the parliamentary sovereignty in the passage of this legislation noble Lord, Lord Kerr of Kinlochard, said in last towards our exiting is very important indeed. I welcome week’s debate on Brexit and devolution, there is a clear the many people who are expressing the need to see perception that the devolution settlement is being that that is involved in all stages of the process. I have undermined by the current Clause 11, which the to say that it is some contrast to the fact that many of Government have thankfully committed to seeing righted these people are strong supporters of the European through amendment. It is very important, as we move Communities Act, which was about removing or through the stages of the Bill, that we ensure that any diminishing parliamentary sovereignty in this country. such amendment is one agreed by all three Governments: I welcome this Bill, which removes legislative powers Her Majesty’s Government, the Scottish Government from the EU institutions, where Bills are passed by and the Welsh Government as well. It is clearly people over whom we have little control and who we disappointing that there is not currently a Northern cannot remove, and brings them back to the British Ireland Executive to support and work on that amendment Parliament which is democratically accountable to the because, at the moment, Clause 11 undermines our British people. As they say these days, “What’s not to constitutional settlement. As the Constitution Committee like about that?” chaired by the noble Baroness, Lady Taylor, has made There are many who say, and I have heard it many clear,this is a very important and fundamental weakness times, that the Bill is restoring powers not to Parliament in the Bill that we must address. but to Ministers, and I agree with much of that. There As I said last week in the Brexit and devolution will be important discussions on Henry VIII powers debate, we have an opportunity through Brexit to and various forms of delegated legislation and the strengthen our United Kingdom by demonstrating like, but what I find weak about the power grab that Her Majesty’s Government recognise and fully argument is that it implies that Parliament—the House support the devolution settlement and that the devolved of Commons—is powerless in respect of Ministers. 1603 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1604

Ministers are answerable day in, day out to MPs. In conclusion, our responsibility in respect of the Ministers’ reputations, often their careers, are made Bill is clear. It is to examine the Bill in detail, as we and broken in Parliament. Most important of all, if always do; to ensure that it is fit for purpose; and in so the House of Commons does not like the way that doing, to respect the referendum, which we established Ministers are running the country, it can defeat them in this House, and its result, which it is now our duty all in a vote of no confidence in the Government and to implement. let the people decide, as happened in 1979. I know because, like many other noble Lords, I was there. 4.10 pm The Bill arrives in our House as part of a process which began with the referendum result and the Lord Kirkwood of Kirkhope (LD): My Lords, it is a 17.4 million people, a record poll, who voted to leave pleasure to follow the noble Lord, Lord Grocott. He is the EU. That falls off the tongue as a glib phrase, but an accomplished parliamentarian who has the benefit we should reflect for a moment on the significance of of consistency. The line that he has just been peddling, that vote. Leave votes were cast despite advice coming with which I profoundly disagree politically, has been from virtually everyone in authority—let us call them held by him consistently since 1972, which is quite a “the great and the good”—telling people to vote remain: claim to fame. the Tory Government, the Labour Opposition, virtually However, there was a glimmer of hope in the remarks all the other political parties—the Liberal Democrats, he made, as he said that he agreed with some of the the SNP,the Green Party and the Welsh nationalists—the things that my noble friend Lord Beith said. I think captains of industry,trade union leaders, the universities, that the House will look to him and all his political the IMF, the Bank of England and leaders of sundry stagecraft and experience to make sure that scrutiny countries throughout the world. Yet despite all this procedures are maintained, because we will need all warning of the perils of voting leave, amazingly, the help we can get to make sure that the Government astonishingly, the people said, “Thanks very much for do not just give Ministers blank cheques. your advice, which we usually dutifully follow, but this The standout moment for me yesterday was when time no thanks”. the noble Lord, Lord Bridges, said, tellingly, that There is no polite or popular way for me to say this, keeping every option open was no option at all. That is but there is an elephant in this room. It is the colossal the message that I hope this debate will carry to the mismatch between the balance of opinion here, judging Government, because it crystallises the problem politically by the contributions in debates over the months, and as I see it. The standout moment for today, which the the balance of opinion in the country at large. When I noble and learned Lord, Lord Goldsmith, referred to, go home at weekends, people do not say, “I made a is the graphic image from the noble Lord, Lord Cormack, dreadful mistake, I voted leave”; they say, “Why aren’t of two noble Lords in a bath singing “Je ne regrette you getting on with it?” Given that the most often rien”. I apologise to the noble Lord, but I have to say quoted reason for leave voters voting the way they did this, because it is true. A mental image appeared in my was that they were not being listened to in Parliament, brain of the noble Lords, Lord Lamont and Lord let us not confirm that impression, particularly not in Cormack, in a hot tub singing it. That is an Instagram an unelected House, by appearing to delay or, at image to kill for. This is meant with due respect to worst, block Brexit. Above all, let us avoid saying to both noble Lords. 17.4 million voters, as some speeches have seemed to, This has been a very constructive debate—and worth that we know what is good for them better than they listening to, because the points have all been apposite. know themselves. It is not yet boring, although that might be different Since the referendum we have had a general election by 9.30 pm. I hope the Government have clearly in which nearly 85% of the electorate voted for parties understood that there is no attempt on anybody’s part committed to leaving the European Union. My party to wreck the Bill. There was never any attempt to do manifesto stated clearly: that, and no appetite for it on any side. If there was, I “Labour accepts the referendum result”, would know about it—and there is not. I can tell the Minister with some authority that he need have no and: fears about the Bill not getting a Second Reading. “We will build a close co-operative future relationship with the However, in a political context, the Government are EU, not as members but as partners”. clearly the author of their own misfortune. As the The Conservative manifesto stated: noble Lord, Lord Radice, and some other colleagues “Following the historic referendum on 23rd June 2016, the have said, self-imposed red lines and deadlines with no United Kingdom is leaving the European Union”. end game in sight are a recipe for incoherence and Parties which were most hostile to us leaving the EU, incompetence—which is the position that we are in at notably the Liberal Democrats, the SNP and the Greens, the moment. all lost vote share. The Liberal Democrats, who have We are all anxious to burnish our credentials. I been quite clear that they want the referendum result arrived in the precincts of the Palace of Westminster reversed, who voted against the implementation of in 1971, and one of the first acts I witnessed was Article 50 and who called for a second referendum to the Liberal parliamentary party of its day assisting the cancel out the first, saw their vote share drop from then Prime Minister, Edward Heath, as he took the 7.9% to 7.4% or, to put it another way, the party which country into the EEC. Among other things, that means inaugurated its general election campaign by aiming that I am actually older than I look, which is a cross I and claiming to be the party of the 48% concluded its have to bear. I have been here for 47 years one way campaign as the party of the 7.4%. or another, in different roles. I was my party’s Chief 1605 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1606

[LORD KIRKWOOD OF KIRKHOPE] 4.17 pm Whip in the Maastricht debate. Then there was a defined treaty, in plain sight and in hard copy. People Lord Hannay of Chiswick (CB): My Lords, the knew what they were arguing about, and it was still European Union (Withdrawal) Bill, to which I hope difficult. There were no deadlines—but, again, the we are going to give an unopposed Second Reading Liberal Democrats came to the rescue. I learned more tonight, is a pretty different animal to the one tabled new bad language in the Conservative Whips’ Office some six or more months ago. It has been amended, during the Maastricht debate than I ever had in any against the will of the Government, to provide for a earlier parts of my life. It was all quite tense, but John meaningful statutory process before any deal is approved Major won because we helped him. by Parliament—a provision originally put forward by your Lordships’ House last March in the context of Recently during the coalition we helped David the Article 50 Bill. That is very welcome. The Government Cameron by co-authoring a Bill which put a lock on have also brought forward amendments on the handling the ceding of any further powers to Brussels, subject of Henry VIII powers, which, while they certainly to a referendum. I do not usually say this, but the need further improvement and strengthening, at least Liberal Democrat parliamentary group in the House show that the Government are aware that the original of Lords deserves some credit for 47 years of solid, approach was excessively tilted towards the Executive. unwavering support—some might even say strong and The noble Baroness the Leader of the House made a stable support—for the position that the United Kingdom good move when she said that she was listening and should stay at the heart of Europe. would probably bring forward further amendments I am a member of the Secondary Legislation Scrutiny soon. Committee and, for me, the battle lines will be drawn But this Bill remains, I fear, a serious case of on the content of Clause 7, Schedule 7 and, to a lesser putting the cart before the horse. We are, in fact, being extent, Clause 11. I pay tribute to yesterday’s magnificent asked to legislate before we know the outcome of the short speech from the noble and learned Lord, Lord negotiations in Brussels with respect to the divorce Hope of Craighead on Clause 11, and I, too, will be settlement, the transition or standstill phase and the speaking about it, for obvious reasons. framework for a new partnership, all of which will Cross-Bench votes—not just voices—are very alter—and probably in many cases override—much of important. I know that there are sometimes challenges what is in this Bill. Moreover, the Bill stands in the among our Cross-Bench colleagues, but they are non- heavy shadow of a further piece of primary legislation, aligned and have a special value in this debate. They the implementation Bill, which will need to complete are excellent contributors to the scrutiny process and its course through Parliament before we leave, because if they do not hold their end up and give their support it will need to give effect in our domestic law to any we may lose votes—so I hope they will think about provisions to which we have agreed in the negotiations that really carefully. in Brussels. That implementation Bill had not even been thought of at the time when this withdrawal Bill The Leader of the House made some helpful comments was originally tabled, when it was then called the great at the beginning of the debate about how she was repeal Bill. That is a bit of a sign of the Government’s going to bring forward some new proposals in March. remarkably haphazard and rather chaotic approach to The new system has to be operational by April or May Brexit. and that is too tight a timetable for this to be done sensibly. The Constitution Committee’s ninth report Nevertheless, for all its defects, this Bill is clearly a has done the House a signal service, and the battleground necessity. The gaps in our statute book need to be it maps out is the one on which I will seek to attack plugged if, and when, we actually leave. That is why it Clause 7 and Schedule 7. The Secondary Legislation is right to give the Bill a Second Reading. However Scrutiny Committee needs further and better particulars deeply those like myself believe that leaving the European and basic things like early access to drafts—if that is Union is a fundamental error of judgment, which will possible, it would help. We also need to smooth out be damaging to our economy and to our influence in the peaks and the troughs in the flow of the delegated the world, we are absolutely required to put this Bill legislation we consider, and resources to staff up the on the statute book without undue delay. committees. I hope that these will be put in place meaningfully, otherwise the quality of the scrutiny— The Minister who will reply to this debate is particularly because of the volume of legislation—is bound to fond of dwelling on the democratic legitimacy of the suffer, and that is not in our interests. June 2016 referendum vote and of the whole Brexit process. I have no intention of beginning a debate here I also hope that the usual channels will start to look today about the relative merits of plebiscitary and again at the Cunningham doctrine, which colleagues representative parliamentary democracy, but I would may remember suggests that in very limited circumstances just say that people who live in glass houses should be the possibility exists for this House to reject statutory a bit careful about throwing stones. The Minister’s instruments. If the Government do not get this Bill presence at the Dispatch Box is largely due to the right, Members such as I will be driven to thinking in support in the other place for the Government’s Brexit these terms. We do not want that, so I hope that the policies by the 10 Members of the Democratic Unionist Government will get on with this and make sure that Party of Northern Ireland, but that party has no the Bill is amended—particularly Clause 7 and Schedule 7 democratic legitimacy as far as Brexit is concerned —in a way that guarantees a scrutiny role for this at all, because the people of Northern Ireland voted House, because that is what we are here to do. to remain. 1607 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1608

I shall mention just one or two of the matters that in the same area. This problem is one that the Constitution will certainly need more careful scrutiny. The first of Committee has solved with great elegance. First, it has these is the provision that would have the effect of said that the direct EU legislation should be treated as extinguishing the jurisdiction of the European Court primary legislation; that is, as legislation passed by of Justice in this country on the day we leave. Whatever Parliament not under the authority of Parliament. one’s views of the Government’s rather mindless Secondly, it should be deemed to have a date of our demonisation of the European Court of Justice—and, leaving date.Because of our system, that will automatically in my view, it is both mystifying and self-defeating—the give it priority over any Act with which it conflicts and Government have already conceded the point in Brussels, which preceded it. I regard this as an extremely clever— since individuals will be able to take their cases on indeed, wise—suggestion for dealing with this matter. status issues and have them referred to the European The Government had thought to have a case-by-case Court of Justice for the next eight years after we leave. decision about this, but I think this is much better and The standstill, transitional arrangements, which are I commend it to the Government strongly. currently under negotiation, are inevitably going to drive an even larger coach and horses across that red The second point relates to the jurisdiction of the line. So why on earth should we be marched up to the European Court of Justice and to references by our top of the hill to eliminate the jurisdiction of the courts to that court. The idea of the statutory reference Court of Justice on the day we leave, only to be is being swept away, but that still leaves the question of marched back down again in the implementation Bill? whether our courts should have regard to decisions Then there is the whole business of the exclusion of the European court. My experience, such as it is, of from the scope of this Bill of just one piece of many this is that our courts are free to look at any court thousands of pages of the acquis communautaire, the decision they want—from Australia, New Zealand, Charter of Fundamental Rights. How on earth can Canada, the United States, or even Scotland. They are that be justified? The fundamental rights enshrined in absolutely free to do that. Originally, I was therefore the EU charter and the Council of Europe convention rather minded that this should continue as far as the are values that we need to uphold, whether we are European Court of Justice is concerned. If something inside or outside the European Union. They surely helpful was said in that court, there is no reason why need to be part of the new partnership, for example, our courts should not take that into account. The which the Prime Minister, rightly in my view, is trying noble and learned Lord, Lord Neuberger, as President to negotiate as her ultimate objective. of the Supreme Court, pointed out that such was the political heat of that sort of suggestion, it would be Committee stage debates are all too often in this very unwise to subject judges to that kind of conflict. House treated as Second Reading debates, but I shall Therefore, it would be right for Parliament to take try to avoid falling into the opposite trap—so I shall responsibility for saying when they could refer to the stop talking about specifics. The complexity of the European Court of Justice. The Constitution Committee overall package of legislative instruments, not just in has recommended a very sensible way of dealing with this Bill but in the others that will follow it, is pretty that: where a court here, considering a piece of pre-Brexit daunting. It is a reminder of the extent to which our legislation from Europe, finds that the European Court economy has become integrated with that of our of Justice has later made a decision relevant to that European neighbours over the past 40 years. It is sort of case, it is entitled to turn to it. shameful that those who campaigned to take us out of the European Union were so unaware of that or, if My final point relates to the devolution settlement. they were aware of it, were so unwilling to share that I regard this as absolutely fundamental but also as with the voters. I think that the voters are now becoming extremely difficult, because there are various levels of aware of what is in store for them; the chickens are power in Europe that may be in, for example, the area coming home to roost, and it is going to be a pretty of fisheries. First of all, there are international powers painful experience. in relation to that. Our current international relationships in relation to fisheries are with the European Union. If 4.24 pm that power is returned here, it should belong to the state of the United Kingdom. On the other hand, Lord Mackay of Clashfern (Con): My Lords, it is a detailed provisions about what happens to fisheries privilege to follow the noble Lord, Lord Hannay. He are made at a more local level, under the present and I co-operated as closely as we could on the original devolution settlement. Therefore, there is a problem attempt to keep us in the European Union. Today, with how this should be done, which I regard as very however, we are faced with leaving the European Union much a matter for negotiation between the Government and I make no comment on that except to accept it as of the United Kingdom and the Governments—where a fact and to refrain from any prophecy as to what will they exist—of the devolved Administrations. I very happen next. strongly support the view that it would be most The Constitution Committee of this House has unfortunate if Northern Ireland continued without an done a very good job, and most of the amendments it Administration. I hope that will not continue and that proposed would improve the Bill. I just want to mention the new Secretary of State—I am saddened by the one or two general points raised by these amendments. health difficulties of the former Secretary of State for The Bill is to bring into the United Kingdom’s statute Northern Ireland—will, perhaps with the Prime Minister’s book legislation passed by Europe but not presently help, be able to restore the Administration. Anyhow, on the statute book. It also provides that this legislation it is a matter for negotiation between the devolved would have priority or supremacy over UK legislation legislatures—the Ministers of the devolved Governments 1609 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1610

[LORD MACKAY OF CLASHFERN] as the devolved Governments are locked down, subject —and the Government of the United Kingdom. I to a new set of restrictions and required to wait for certainly hope and believe that the best solution to the their partial release while Westminster and Whitehall Clause 11 amendment is for the Government to come fix up the post-Brexit world. forward with an amendment agreed by those parties. I After seven months in which little urgency has been have great confidence that they all seek a solution to shown, little regard for consultation with the devolved what I regard as a very difficult problem. I hope they Administrations and no sniff of amendments, can the will succeed. If they do, I am sure it will be with the Minister give a guarantee that the amendments to greatest pleasure that we will give effect to that agreement. Clause 11, which are badly needed, will be presented The last point I want to make—just after the last before we debate it in Committee and after consultation one, as it were—is that the European Charter of with the devolved Administrations? That is the least Fundamental Rights is a big subject. The noble and that they could expect. learned Lord, Lord Goldsmith, said a good deal about that. I will not take time on it now, since my time is up The third task is, of course, to ensure that Parliament anyway. has the decisive vote, not just simply on the terms of exit but including on the real possibility of no deal, on 4.32 pm the nature of the transition and on the framework of our future relationships. Baroness Andrews (Lab): My Lords, it is a pleasure to follow the noble and learned Lord, Lord Mackay of The parties in the other place have shown us how to Clashfern. I could not agree with him more on what he proceed by example. They made common cause to win said about the Constitution Committee. It has done a a number of very welcome concessions around scrutiny lot of the Government’s thinking for them. I hope that and the notion of deficiency in retained law. I know the Minister may be inclined to bring forward his own that we can work together across this House to build amendments on that basis. on that to ensure not least that Ministers do not have Like so many noble Lords, I deeply regret the the carte blanche to decide on the use of regulations to necessity of this Bill, but I feel we have no choice but prevent, remedy or mitigate the failure of, or deficiency to do what only we in this House can do. I believe we in, the retained law as they see appropriate—for which are engaged in an historic act of self-harm, but by read “desirable”. Those powers are as wide as the amending the Bill we may be able to mitigate some definitions are boundless. Rather, as my noble and damage and make the future a little more predictable. learned friend Lord Goldsmith said so powerfully, Weare awash in a sea of legal and political uncertainties, Ministers should be required to justify this as of about which many noble Lords have already spoken necessity to achieve the limited object in question. brilliantly. They make a nonsense of the constant This is not just a constitutional point; it goes to the mantra we hear from the Government about the need heart of what our country will look and feel like after for certainty and control. The right reverend Prelate Brexit. The way those powers are used brings the the Bishop of Leeds, who is not in his place, made a possibility of greater risk, lower standards and the loss most powerful speech yesterday when he spoke about of opportunities. Anyone who is concerned about the the “normalisation of lies”, to which I would add the fate of public and health services, the science base, the normalisation of delusion. The greatest delusion of all safety of the environment, the prospects of our children, is that, after a year characterised by denial and bluster, and whether our inequalities continue to grow or the Government can magically achieve a deal that has shrink has a huge amount to lose by the winning or never been on offer that will enable us to retain all the losing of that debate. benefits of being in the EU with none of the obligations. The Government constantly ask us to trust them We need to get rid of the culture of infantilisation—the not only to know what they are doing—I will be glad fear of reality—that has so reduced the debate we to park that—but to use their powers to change laws should have had on Brexit. that they do not like. No Government could be trusted We have an opportunity to reassert the constitutional with these powers; they are irresistible. Time and again balances of power that are so dislodged by Clauses 7 this Government have tried to take more power and to 9 and 17. They give unprecedented delegated powers diminish scrutiny. Remember our battles over the then to Ministers and Whitehall—justified, as they always Public Bodies Bill and the then Deregulation Bill; and would have been, by the need for speed and flexibility. the creeping use of secondary legislation to make The transposition of EU law into UK law presents policy and not merely correct technical errors? We unique challenges but does not require draconian should add that to a whole year spent trying to exclude powers never before seen in peacetime. These clauses Parliament, even in the courts, from having a say in the are, frankly, opportunistic. The first task is obviously decision to leave, and a toxic obsession with secrecy to take control back from Ministers and put it back that has kept under wraps any evidence of impacts into the hands of Parliament, where it belongs. which might inform, let alone change, public opinion. The second task, to which the noble and learned We end up with a Government who do not trust the Lord, Lord Mackay of Clashfern, and many others in people with evidence, let alone truth, and who have, I this House have alluded, is to prevent the constitutional believe, forfeited the right to be trusted themselves. car crash that is heading towards the United Kingdom We are already being bullied and we will go on in the potential failure of the devolution settlement being bullied, but the enemies of the people are those and the deferred model. The challenge is technically for whom all evidence is rubbish and all argument complicated but politically extremely simple. If Clause 11 treason. I am sure that, just as has been done in the is not amended, the constitutional equalities will disappear other place, we can work together in this House not 1611 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1612 just to make this Bill constitutionally acceptable but to epistocratic virtues of our parliamentary democracy. restore trust in the democratic and parliamentary That is not practicable. Having asked the people once, process itself. I believe that will be possible because, no and having said wrongly that we would abide by their matter where we stand on Europe, we all stand together verdict, we cannot, without damaging national unity in defence of parliamentary sovereignty. in the long term, simply overrule them. The only answer, therefore, is a second referendum, 4.39 pm where the terms are known. Judging by the poll in the Guardian this week, it is a choice which the people of Lord Lipsey (Non-Afl): My Lords, it is a great this country would by a substantial majority welcome. pleasure to follow my erstwhile political friend but I Let us hope it would be the referendum to end all hope still personal friend the noble Baroness, Lady referendums. Andrews. Of the cornucopia of questions that have come up so far in this debate I will to address only one: 4.43 pm namely, does the result of the referendum in June 2016 effectively compel Parliament to agree to Brexit, of Lord Hogan-Howe (CB): My Lords, I want to make which this Bill is part? clear my overall support for this Bill and its purpose. Technically, it seeks to sever our links with the European I express no view as to whether Brexit is a good Union by removing the supremacy of European law thing or a bad thing, for the simple reason that, and the competence of the European Court and its perhaps uniquely in this House, I hold no strong view. interpretation of that law. I support that aim. I do Of those eligible to vote in 2016, 37% said yes. That is support Brexit. 51.9% yes on a 72.2% turnout. Given the flaws in the I do not support a second referendum. It seems odd electoral register and the exclusion of 16 to 18 year-olds to me that those who objected to the first referendum from the poll, it must be doubtful if even a third of on the grounds that it offended the principle of those who should have had a say voted to exit. But never parliamentary democracy—in fact, I think yesterday mind—one is enough in an election, and it seems it was called a sin against parliamentary democracy—now moany to question whether, in light of the result, the argue that it is an appropriate way to allow the electorate Government have a right to pursue Brexit. They do. to express a view. But we have a sovereign Parliament. Indeed, the For a while, I—like, I suspect, others in this House— sovereignty of Parliament was the absolute core of was conflicted on how to vote in the European referendum. their argument for getting out of the European Union. For me it was a heart and mind decision, and of It trumped by far silly scrawlings on buses about course they were not entirely in agreement. I could see national health spending. To restore sovereignty from that there were risks involved in exiting the EU. It was Brussels’s depredations is why we are leaving. To argue, the status quo, and therefore there would be costs on the one hand, that the sovereignty of Parliament is associated with the change and disruption to our the supreme virtue and then, on the other,that sovereignty governance—as we will probably see here over the should not apply in this one case is surely a paradox next few weeks. There was the potential effect on too far. economic trade. The European Union, including its Let us be clear. Parliament under our constitution currency, has not been an economic miracle. In fact, it is entitled to overrule the referendum result if that, in has enhanced bureaucracy and reduced free enterprise. the considered opinion of its Members, is the right The European procurement process alone is a disincentive thing to do. No Parliament can bind its successor, and to innovation. In the Metropolitan Police, where I no election result remains the result for ever. In this served, the dreaded words “EU procurement in public case there is a clear and important difference, I think, service” usually means 18 months of little progress. between the remain side and the leave side in the The contradiction is that it takes longer to make a referendum. The remain side was for remaining on the worse decision than in commerce. terms renegotiated by David Cameron. The leave side The Union is said to have better protected human was for—what? Soft or hard? Single market or not? rights against the infringements of the state. However, Customs union or not? Irish border or not? What the more intrusive the European Union became, the movement of labour? There are as many answers as more that protection was needed from a Commission, there are Brexiteers, as the current debate in the Cabinet Parliament and Council of Ministers that lacked illustrates. democratic accountability. Following the negotiation, there will be a single Concerns have been expressed about our future alternative to membership. Some who were remainers security, but our security is built on a strong military, might then say, “Well, that is a good result. I think I intelligence and policing infrastructure. However, I should have voted leave after all”. Some who were argue that maintaining all these does not require the UK Brexiteers might say, “That’s not what I really voted to be a member of the EU. In defence, our military for. I want another go. I don’t like this”. It is between strength depends on our own investments and innovation, remain and that single alternative that the choice will together with those of our allies. Our major military then lie, and the sovereign Parliament, as I think the bulwark is NATO. It does not rely on Europe but it Government have now conceded, must ultimately make does rely on America. that choice. In the sphere of intelligence, our intelligence I am very sympathetic to the view of the noble effectiveness is built on our partnership with the “Five Lord, Lord Higgins, that it would be best if we made Eyes” intelligence community of America, Australia, the choice ourselves, with a strong eye, of course, to Canada, New Zealand and the UK—yet they are not public opinion but also bringing to the question the in Europe. No country in the world shares all its 1613 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1614

[LORD HOGAN-HOWE] Finally, in terms of our own role, I really believe intelligence and sources with any other country.Europe that we need to be careful in how we exercise our does not have an intelligence hub where the French tell significant power in coming days. Political elites believing the UK and Germany tells Holland everything they that they can discreetly manage constitutional change know about each other—it is not in their national among themselves will rarely succeed. People are not interest to do so. The reports that the US had listened fools and their representatives are not kings. We would to the German Chancellor’stelephone can have surprised do well to listen to their voice in the referendum and no one. However, we have been very effective at bilateral implement its result as best we can. The alternative for sharing of information on terrorism. Does anyone our constitutional democracy is, I believe, too unfortunate seriously suggest that on leaving Europe we would not to consider. share information about attacks on Paris or Brussels, should we have it? 4.50 pm On policing, we have been effective at sharing criminal intelligence, wanted lists and extradition warrants through Lord Howard of Rising (Con): My Lords, with so Europol, which is not an enforcement agency. We have much already having been said, I shall limit myself to also co-ordinated enforcement through Eurojust and addressing the concern expressed by some of your MLATs, which have enabled efficient investigations. Lordships about Henry VIII powers and statutory However,our European experience has not been perfect. instruments. When we voted to leave Europe we were still not a There have been squeals of dismay from remainers, member of Prüm, the European database of DNA, who claim that the use of these powers is an erosion of fingerprints and facial images that is shared across parliamentary sovereignty. I am bewildered by this Europe. The European extradition warrant was efficient sudden concern for parliamentary sovereignty. Being and consistent across Europe, but it required a sufficiency part of the European Union means that very sovereignty of evidence to charge in the requesting country before has already been surrendered, with our Parliament being such a warrant could be issued. This meant that, on subservient to an outside body.Regaining parliamentary return to this country,the suspect could not be interviewed sovereignty and independence is one of the main and had to be charged immediately. This is a high bar arguments for leaving the European Union. which interrupted some very good investigations. It is not correct to say that Parliament will be The benefits of Europol are enjoyed by Norway, bypassed by the use of secondary legislation. Change which is not a member of the European Union—so by statutory instrument is a parliamentary process. As why not the UK? There is great mutual benefit to such, Parliament, if it so wishes, can reject a statutory Europe and the UK in not providing a safe haven to instrument. There is the further safeguard of a two-year criminals from each set of countries. No one wishes sunset clause. There will also be a sifting committee in to see French rapists roaming free in the UK, and I am the Commons, with the ability to change a negative sure that this will be one of the issues to be resolved in statutory instrument into an affirmative one. This the present negotiations, with new extradition agreements underlines the ability of Parliament to call Ministers based on the existing model. to account. I resolved my heart and mind dilemma by realising During the last 40 years, 8,000 pieces of law were that what mattered most of all was sovereignty. In passed using secondary legislation. Did any of today’s fact, the Bill might better have been called the “Sovereignty complainers about the use of secondary legislation Bill”. The ability to influence the Parliament of which complain then? What is even more astounding and we are Members is a democratic principle that our shocking is that 12,000 pieces of European Union people have fought and died for in the past. I could legislation were introduced into this country without have disavowed that principle if I had been convinced parliamentary involvement, including such items as unequivocally that we would suffer disastrous economic forbidding drinks manufacturers saying that drinking damage, but for me that was not proved. water cures dehydration. That might have raised the I understand why people feel so passionately about odd eyebrow had it been put before parliamentarians. being part of Europe. However,it appears to be changing How can it be argued that the Bill erodes parliamentary from a common market to a federation. It has declared supremacy when we lost it over 40 years ago? Leaving in its treaties an intention to become closer, and its the European Union means regaining parliamentary leaders have declared in speeches and policies an intention independence. Only in the world of Alice in Wonderland to become a federation. Ironically,I believe that federations could there be comprehension of the upside-down have been shown around the world to be a force for thinking where those complaining about an erosion of good, and rarely fail. It may even save the UK constitution the power of Parliament are the very people trying one day. But they must be argued for openly and hard to prevent sovereignty returning to Westminster. transparently to allow for the separation of powers, It cannot be preferable to have laws made by an the rule of law, and checks and balances to be agreed. unelected European Union bureaucracy rather than The majority of speeches in this House supporting our own Parliament. I join the many other noble remain have highlighted the risks of change as we Lords who have expressed this in hoping that we, in implement the new order. However, there is no no-risk this House, are not so blinkered as to ignore the option on the table. An unreformed EU from which principle that this unelected Chamber should not oppose we were diverging would be a significant threat to our the express wishes of the electorate. These were clearly future. Even under the threat of Brexit, EU leaders demonstrated in the referendum and in the last election, resisted the narrow proposals for change put forward when both main parties included leaving the European by our then Prime Minister, David Cameron. Union in their manifestos. 1615 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1616

4.54 pm becomes irreversible. Similarly, the “polluter pays” principle has been crucial in cleaning up our water Baroness Jones of Whitchurch (Lab): My Lords, supply, with water companies given large fines for having stood on Hove beach with a cross-party group polluting rivers and killing fish. This principle is an of MPs and campaigners in May 2016 to highlight the important deterrent for those who would otherwise be dangers to the environment of a leave vote in the cavalier about their impact on the environment and referendum, sadly I find it necessary this afternoon put profit before people. to continue the argument I made then. Despite the Government’s rhetoric on the environment, there is a We will also be seeking guarantees regarding our great deal more that this Bill will need to do to make continued involvement in the European institutions those promises a reality. It is pertinent that that very which have provided effective monitoring and enforcement beach was one that helped to earn the UK the nickname of environmental standards. Organisations such as the “the dirty man of Europe” when it joined the EU in European Food Safety Authority have been crucial in 1970. Fast forward to 2018 and the beach is now one clamping down on misleading labelling and tackling of 97% of UK bathing waters which have passed the salmonella and the horsemeat scandal. Another example EU quality test, thanks in no small part to the strict is the REACH chemical regulation, which sets safety standards put in place at EU level. standards for trading and usage across the EU and stops toxic dumping. We have to ask ourselves why, over the years, we Finally, and crucially, we will want to ensure that have had to rely on EU directives to clean up our any new UK green watchdog is up and running by exit water, our waste, our air and our soil, and why we have day,is placed on a statutory footing, is truly independent, had to rely on the 527 EU regulations that set standards and has the powers to fine Ministers when environmental for the environment and health protection, not to rules are broken. mention the 922 affecting agriculture and the 1,122 shaping a sustainable fishing policy. These have all played their Organisations such as ClientEarth, which act on part in transforming our environment, with the result behalf of citizens, have been able to tackle illegal air that something like 80% of UK environmental legislation pollution because they can take government to court. is derived from the EU. Therefore, it is no wonder that We have to ensure that access to justice, without environmental and animal charities are concerned about prohibitive cost, remains in the new legislative framework. what the future holds, and why we are keen to pin The Government have said that they are consulting on down the detail of the legislative transfer to UK law. the composition of this new body but, like many other outstanding issues, it is vital that this is resolved and So we have to be concerned when, in the Commons, brought into legislation before exit day. the Government voted against amendments that would Many other environmental challenges arising from have entrenched all the EU regulations in UK law, free Brexit are not covered by this withdrawal Bill. We from ministerial interference via their Henry VIII await details of the agriculture Bill, the fisheries Bill powers. Equally, their rejection of the precautionary and even a separate environment Bill. It will be a real principle and the “polluter pays” principle in managing challenge to meet the timescales to deliver these before our natural assets showed a disregard for the fundamental exit day and we need to be clear on what will happen if protections that have made the EU a global environmental that deadline is not met. Therefore,we will seek guarantees leader. As we know, they rejected the animal sentience that, on exit day, the whole package of environmental amendments, which have now been superseded by a reforms is underpinned by the same protective principles separate draft Bill. Many would argue that that would that have provided such effective protection throughout have been completely unnecessary if only the Government our membership of the EU. had heeded our advice in the first place. The Government would have us believe that they 5pm are now converted to the cause and that the environment Baroness Janke (LD): My Lords, it is a great pleasure is safe in their hands. Forgive us for being rather to follow the noble Baroness, Lady Jones, and to hear sceptical, because evidence is in rather short supply. about the environmental protections she is concerned Although of course we are pleased to have seen Michael to protect. There have been very many eloquent speeches, Gove carrying his reusable coffee cup, I would rather and insightful remarks over the last couple of days. have seen him wielding a comprehensive list of Many see the Bill as a technical process: a legal pathway, amendments guaranteeing that the environmental albeit complex and fraught with constitutional threats protections will be at least as good as those delivered and dilemmas. But, to many, it is as much about the by the EU in the past. So we will be supporting country we want to be, the values we hold, the beliefs amendments that address that deficit. we fight for and, not least, the people we serve. Omitting In the debate yesterday it was argued that we now the European Charter of Fundamental Rights is seen have three categories of legislation: primary, secondary by many as not preserving the rights of the people we and EU retained. I would add a fourth: the environmental serve and rejecting the values of fairness, justice and principles currently set out in the introduction to EU freedom. The provisions of the charter are wide-reaching: law but not due to be transposed. For example, I have dignity, the right to life, right to care and rights of the already referred to the precautionary principle, which elderly; freedoms, including freedom of thought, is crucial in its application to pesticides. As we know, conscience and religion; equality, non-discrimination bee species and other pollinators are in decline, and on race, religion and sexual orientation; rights of evidence mounts that neonicotinoids are to blame. minorities; solidarity, employment rights, rights of We need to heed the scientific advice and take urgent association; and citizens’rights and justice rights—rights steps to protect our ecosystems before the damage to representation and advice. 1617 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1618

[BARONESS JANKE] to be incorporated with the rest of European law. We The charter, as other noble Lords have said, also must not permit the weakening of human rights through offers remedies when human rights are violated which the back door, rather we must retain the charter and are not available if the charter is to be excluded from its protections against violations of human rights. the Bill. The Government’s explanation is that the This is all the more important as the country faces a substantive rights included in the charter are protected time of massive and unpredictable change. in different places in EU and UK law. However, legal I hope that this is not a matter of too much difference opinion published by the Equality and Human Rights between Members of parties or of no party and I Commission is that failure to preserve relevant parts hope, given that many noble Lords have spoken about of the charter after Brexit will lead to the weakening this issue, that we can work across the House to make of the current system of human rights protection in sure that these values are upheld and the charter is the UK. retained in the treaty. In its recently published report that many Members have referred to, the Constitution Committee said: 5.07 pm “If, as the Government suggest, the Charter of Fundamental Rights adds nothing to the content of EU law … we do not Lord Armstrong of Ilminster (CB): My Lords, my understand why an exception needs to be made for it”. views on Brexit have not changed since our debate on The Joint Committee on Human Rights says that, 5 July 2016, after the referendum. I cannot rid myself “the exclusion of the charter from domestic law results in a of the feeling that we are making a great mistake for complex human rights landscape which is uncertain. Legal uncertainty which our children and our children’s children will pay is likely to undermine … rights”. the price. In preparation for this debate I have been All of this should set alarm bells ringing for the rereading what I said in July 2016 and I wondered future of human rights. For example, the National whether simply to repeat it today. It would have been Union of Students is greatly concerned with any negative interesting to see whether anybody noticed. implications that removing the charter could have on In short, I remain of the view that while we have students and on citizens across the country. Article 14 been members of the European Union we have fared of the charter gives the right to an education for every better and the country has been more prosperous at individual, including “vocational and continued training”. home, although there is room for improvement in the With the removal of the charter there is a worry that distribution of the benefits of that prosperity. Our new wording may mean that this no longer applies in country has been stronger in its standing and influence the UK. Furthermore, the charter includes a number in international affairs. That would continue to be the of vital protections for the most marginalised students, case if we remained in the European Union, but it will particularly LGBT,women, disabled and black students, not if we do not. I cannot simply dismiss and ignore who typically face barriers to engaging and succeeding all the analyses and forecasts which support this view. in education. I do not have much confidence in sunny uplands. We Following the referendum, we saw a huge increase live in a global and competitive world, and we should in hate crimes, with some parts of the country suffering be favouring multilateral institutions and solutions, more than a 50% increase in racial and religious not pursuing unilateral, nationalist courses where we persecution. There were also large increases in the isolate ourselves. I fear too that leaving the European persecution of people with disabilities and those in the Union will prove to be a threat to the integrity of the LGBT community. We really need to ask how any United Kingdom as well as to the peace process in diminution of human rights can be acceptable in the Northern Ireland and our relations with the Republic light of this. Yesterday evening I was struck by the of Ireland. remarks of the noble Lord, Lord Triesman. He asked When we come to consider the final proposals on who will suffer if all of this goes wrong. Who will be Brexit, we shall need to consider how far the mandate blamed? Who will be scapegoated? That is what we of the referendum in 2016 still has authority. The need to ask ourselves. The exclusion of the charter campaign that led up to it was full of half-truths and sends a powerful message that the poorest and most fake information, and we now have much clearer vulnerable citizens can expect things to change for the knowledge and better information about the probable worse, certainly as far as the protection of their rights costs and consequences of leaving the EU than we had is concerned. in June 2016. That, however, is not the issue for debate If ever there was a time that human rights needed today. This Bill is about process, not policy: it is about full protection under the law, it is now, particularly in how, not whether, we set about leaving the European light of the cuts in local services. Minimal support is Union. We shall have to come back to the existential now being provided for the most vulnerable. Refuges decision of policy when we come to approve the deal for victims of violence are in crisis, advice on debt has that the Government will have negotiated with the been drastically cut, and the number of homeless and European Union. rough sleepers is soaring. All in all, the services that As this debate is showing, there will be plenty of support basic rights are struggling for existence. The important and difficult issues to be considered in Government have pledged to scrap the Human Rights Committee and on Report. I will concentrate on the Act and replace it with a less robust British Bill of proliferation of secondary legislation. For years, we Rights and have been consistently sceptical about and have become accustomed to being asked to consider resistant to attempts to extend human rights, so any very large Bills, some with 200 or more clauses. It is weakening in this Bill of the legal framework to enforce impossible for Parliament, particularly the House of human rights must be opposed and the charter needs Commons, to give these mammoth Bills the scrutiny 1619 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1620 they deserve and that it is our constitutional duty to It has, for many reasons, been with mixed emotions provide. Many of them contain many proposals for that I have sat through this debate. One reason is that I authorising the preparation by government of statutory wish the debate was not taking place. I wish that we instruments that convey delegated legislative powers were not preparing to leave the European Union, and to Ministers, with no opportunities for Parliament to not leaving on the whims, prejudices, and architecture amend them. Some of these instruments contain of the Eurosceptic wing of the Conservative Party, powers—the so-called Henry VIII powers—to vary or aided and abetted by the right-wing press. But politics amend primary legislation. I suspect that we should is not about wishing; it is about having the courage to call them the Cromwell powers, really, because Thomas take difficult decisions—not necessarily to follow public Cromwell started it and it was gleefully taken up by opinion, but to lead and fashion it, to challenge it and Oliver Cromwell. to offer other options. I believe that politics is about The steadily increasing resort to these statutory having the courage to be unpopular and to do what is instruments has led to the steady creep of legislative in the long-term interests of your country. It is to put powers being transferred from Parliament to the Executive. country before party or personal advancement. There are now several thousand new statutory instruments Yet, sadly, the debate has barely moved on. The every year. Some of them do not require parliamentary lack of knowledge about how the EU functions, and approval at all. Many pass without being scrutinised the role of member state Governments within it, is as by Parliament. Only some require parliamentary approval shocking as it is depressing. Some would have us before they come into force, and then Parliament can believe that Governments are dragged against their only approve or reject them: it cannot amend them. will into the European Union and the Council of Section 2 of the European Communities Act 1972 Ministers, where they make their democratic decisions. provided for the incorporation of EU legislation into Neither is there understanding of the role and duties British law, much of it by statutory instrument. The of the European Commission, given to it by the treaties, Bill goes further than that, in that it would allow the or the directly elected European Parliament, in which Executive not only to confirm the incorporation of I proudly served for 15 years. This is either ignorance European law into British law by statutory instrument, or, perhaps, wilful misrepresentation. but to vary it in doing so. This implies a large extension The EU was born out of the ashes of the Second of the Executive’s power to make law without adequate World War: the ashes of people’s hopes and dreams, parliamentary authority. and yes, the ashes from crematoria that were dotted As a former civil servant I can understand the across Europe. A group of countries came together to Executive thinking that Parliament has neither the ensure that history would not repeat itself—that we capacity nor the resources to scrutinise all these statutory would never turn away again. It is a European Union instruments meaningfully. As a parliamentarian now, that has at its root and core fundamental human I think that we have to consider very carefully whether, rights and freedoms that are non-negotiable, even on and if so, how, these instruments can be made subject accession into it. It is a union of countries and peoples to more effective parliamentary scrutiny and approval. joined by common principles and a united purpose: If we are to leave the European Union, this Bill is never to look away again and allow countries or necessary to provide for the process of doing so. Like peoples to be scapegoated or sacrificed. It is this the noble Lord, Lord Hannay of Chiswick, I hope that European Union that we now turn away from, as we it will be passed. It is an important Bill, to which we seek isolation while fooling ourselves and our citizens should give a Second Reading today. It will require—as that it makes us stronger. we have seen in this debate—long and detailed I say to my own Front Bench in another place that examination in Committee and on Report. It also out of the European Union was constructed the single demonstrates some of the consequences which will market, which has equality and fairness at its root and follow the decision to leave the European Union, a core, and that we should maintain our membership of decision which we shall have to review when we have that single market. But we are where we are. The agreement on the terms of our leaving and the conditions, country is divided and people feel left out, isolated costs and consequences of leaving are clearly established. and unwanted. EU citizens living here feel under threat, their futures and their children’s futures insecure 5.14 pm in a country that they thought they could call home Lord Porter of Spalding (Con): My Lords, there and where they could play by the same rules, abide by have been some excellent speeches from both sides of the same laws, and remain safe and welcome. How the House and on both sides of the issue. To be fair, as shamefully we have treated them and our citizens who the 148th speaker I think that there is probably little I live in other parts of the European Union. can add to today’s debate and that the best I can do as Where once we served as a beacon of hope, fairness a contribution is to give your Lordships a gift. Do not and decency, we are now viewed in a very different worry—you will not have to put it on a form, as the light. The glow has gone and this sceptred isle fumes gift will purely be of time. Please enjoy the six minutes with a narrow nationalism, promoted and stoked by that I am going to give back to your lives. the right-wing press—particularly the Daily Mail, with its threats and attacks upon any who dare in a democracy 5.14 pm to think or vote other than the way that the Daily Mail Lord Cashman (Lab): My Lords, I am particularly or the Daily Telegraph believe that we should. Is it pleased to follow the previous speaker. Perhaps that traitorous to pursue what you believe to be in the best six minutes should be in my entry in the register of interests of your country? Or is it traitorous to abandon interests. your principles and your country, and surrender to 1621 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1622

[LORD CASHMAN] Of course, this is not an Act of Parliament to threats from those who wield power without responsibility determine whether we leave the EU. Article 50 notice or accountability? Where is parliamentary sovereignty, has already been given. However, this is probably the when attacks are heaped on parliamentarians for exercising first opportunity that this House has had to try to their democratic rights in Parliament? We live in strange influence negotiations: in my case, I hope, away from a times. disastrous hard Brexit. From the remain side, we clearly Many noble and learned Lords have spoken of the know what business wants. Banks and financial services deficiencies in the Bill. Organisations such as Liberty, companies want their ability to sell their services across Amnesty, the Fawcett Society and so many more have Europe to remain unchanged. given their recommendations and shared their concerns, I speak for the Liberal Democrats on manufacturing. especially around the issues of equalities, human rights It is also clear what the overwhelming majority of and the dilution of democracy. I share their views. In manufacturing companies want. First, they want a the debate in my name in your Lordships’ House on continuation of tariff-free access to Europe. It has 12 December, I posed questions to the Minister on been suggested that this is less necessary in the light of human rights post Brexit. I was not reassured by the the drop in sterling against the euro. While it is true replies, either during the debate or in subsequent that the drop in the exchange rate, together with the correspondence. uplift in world trade, has given a boost to our export I want now to refer particularly to the recommendations sales in Europe, it is not the whole story. As noble that came from the Equality and Human Rights Lords will be aware, many manufacturing companies Commission. On the withdrawal Bill, it advises that import their components from the European Union, we retain the UK’s equality and human rights legal so the drop in currency has increased their costs. As framework as we leave the EU by including within the yesterday’sfiguresfromthecarmanufacturersdemonstrate, Bill the following. First, we should rule out the use of there has been a significant drop in investment in the delegated powers to reduce equality and human rights motor car industry since the referendum. What is clear protections. Secondly, we should include a principle of to those of us on this side of the argument is that the non-regression of equality and human rights law.Thirdly, so-called hard Brexit, with us moving to WTO rules, we should retain the protections of the European would be a disaster for our manufacturing industry. Charter of Fundamental Rights. Fourthly, we should introduce a domestic right to equality. Fifthly, we Secondly, manufacturers want frictionless borders. should ensure that the United Kingdom keeps pace Clearly, this is an essential requirement in Ireland, but with developments in equality and human rights law it is also critical for the many manufacturing companies by ensuring that our courts have regard to relevant EU that employ just-in-time systems for the use of imported case law after exit day. components, where pieces of equipment often pass several times across the border with Europe. Any In light of the Bill’s twin aims of ensuring legal system that involves hold-ups at the border would be certainty and continuity, removing the charter and the disastrous, and industry has no real confidence that right of action based on the general principles is any proposed electronic border provisions would work. wholly inappropriate. The charter secures important As we know, the introduction of IT systems by all rights, as others have said: education, protection of Governments is not good. the elderly, and equality rights—including, I say as a gay man, LGBT rights—which could be seriously Thirdly, manufacturers want continued immigration undermined, as well as the principle of non-discrimination. from Europe. Other speakers have mentioned the need The Bill must be improved, especially with regard to for nurses, carers and workers in the leisure industry, the charter and the equalities that currently exist. If but industry requires a continuous input of skilled the Government’s intentions are honourable then they workers. As my noble friend Lord Stunell would say, should put the protections I have outlined on the face the construction industry will collapse without skilled of the Bill, and not in worthless reassurances or in a workers continuing to come from Europe and there committee which, to quote a Minister in correspondence, will be no chance of the Government meeting their is merely advisory. The noble Lord, Lord Howell, housing targets. The so-called tech cities springing up spoke earlier about ambitions. My ambition is simple: throughout Britain require the continued import of the protection of rights that have been fought for skilled workers from Europe. The Government will across generations—and fought against—and which say that we will soon develop our own skills base, but define a civilised country. there is no chance that it will happen on any reasonable timescale. In any event, some skills are no longer taught 5.22 pm in the United Kingdom. For example, many engineering SMEs need analogue engineers, but we now teach only Lord Razzall (LD): My Lords, I suspect that I am digital engineering in our universities. not alone in your Lordships’ House in having spent the last year being asked what I was going to do about Fourthly,there must be certainty about how regulatory Brexit. People who would be described as leavers have agencies will continue or be replaced. There are myriad been asking why we are not getting on with it; remainers European agencies whose regulations exporters will like me have been asking what I am going to do to stop still have to comply with. Will we be setting up our it. With more than 180 speakers—as the noble Lord, own agencies at huge cost or will we retain general Lord Porter of Spalding, has indicated—it is probably compliance with European regulations? The standard the case that everything has already been said. answer from the Government is of course that we Unfortunately for noble Lords, however, unlike the anticipate agreeing continued arrangements, but will noble Lord, Lord Porter, I still want to say it. Europe agree? 1623 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1624

Clearly amendments will be tabled in Committee everything that affects the health of the population. It from across the House to reflect the wishes of business is vital to our health and well-being, critical for the that I have just expressed. Manufacturing industry sustainability of the NHS and social care, and will of would certainly support an amendment that said we course contribute to the long-term productivity and should stay in the single market and the customs prosperity of our nation, not least by ensuring that we union. I will support an amendment to provide for a have a healthy workforce but also by ensuring that we further referendum on the terms of any deal, for are able to compete on a global stage by providing the which a number of noble Lords have indicated their support for the country’s vital biomedical and life support. As noble Lords have indicated, the ICM poll sciences sector, which will be so important in the for the Guardian last week showed that well over future. It is good to see that the Government are 60% of the public now want a further referendum on supporting this sector in a positive way. the terms of leaving. It was noticeable that the only As we all know, diseases know no boundaries, and I age group against the idea of this referendum is the am pleased that the Secretary of State for Health has retired—that is, people who no longer play a role in outlined his commitment that the Government will the business life of the country and have the smallest aim to maintain UK participation in European stake in our future. I hope the Government will now co-operation on areas such as disease prevention and agree to give the electorate what they clearly want. public health. Although this assurance is welcome, we will need more specific commitments. I hope the Minister 5.27 pm will offer reassurance to the public and professionals that the Bill will “do no harm” to the public’s health Lord Crisp (CB): My Lords, I voted remain in the and that no provision introduced as a result of it will referendum not for any great love of the European widen inequalities or increase pressure on the NHS Union and its institutions but for the reason described and social care. This is important, and I believe other by my noble friend Lord Armstrong of Ilminster: our noble Lords will table an amendment to the Bill future is about being connected with others in this seeking a commitment to maintain a high level of very connected world and we will be stronger for it. protection for public health through all their legislation. Indeed, I recall the Select Committee on soft power’s Providing this reassurance in the Bill would be consistent report, which described the positive future for the UK with the Government’s intention to provide certainty as the best networked country in the world. In many and with their commitment to improve the population’s ways, we could be the best connected country in the health. world and that would be a strong place for us to be, so it is sad to see that we are stepping back from the European Union and Europe at the same time as we 5.31 pm seem to be stepping back from other areas of our Lord Hunt of Wirral (Con): My Lords, I declare my international role, including international development. interests as set out in the register, in particular as a We are doing it just at the point when, it seems to me, partner in the global commercial lawfirm DACBeachcroft the people we have been aiding and working with in and as chair of the British Insurance Brokers’Association. low and middle-income countries are beginning to As we all know, the purpose of a debate at Second gain some political power that may help us in future. Reading is to discuss the principles underlying a piece Like other people who voted remain, I wish to of proposed legislation. Rarely in my experience as a move on, and the aim is to get the best deal we can in parliamentarian has it been more important for us to every sector in the negotiations that are under way to be clear in our minds about what a Bill is and what a ensure that we can have as positive a result from Brexit Bill is not. This Bill is not designed to initiate Brexit, as possible. Like other noble Lords, I have interests in as my noble friend Lord Ridley so forcefully pointed some specific areas that need to be given detailed out yesterday. It is a vehicle for dealing with the scrutiny. In my area of health, I have a number of consequences of Brexit, and for maximising the concerns, some of which have already been mentioned. opportunities we derive, while minimising the risks I shall list a few. There is the big question of securing and potential collateral damage. As my noble friend continuity of staffing for health and social care, research Lord Hill of Oareford said: and the scientific community. This is the greatest “In some ways, it is quite a boring Bill”.—[Official Report, vulnerability facing the health system in this country 30/1/18; col. 1388.] and one that we need to make sure is protected. In But as my noble friend the Leader of the House stressed addition, there is access to research funds and to at the start of this debate: research collaborations with our partners in Europe, “It is vital to a smooth and orderly exit from the EU… to which are so important. There is reciprocal healthcare honour the referendum result”.—[Official Report, 30/1/18; col. 1373.] between ourselves and our fellow citizens of Europe, In the absence of the Bill, legal rights would inevitably as we now are. We need to understand how all these be affected overnight, in a disorderly fashion, which issues are affected by the provisions of the Bill in would critically undermine the rule of law and almost detail and in practical terms. I am sure we will come certainly overwhelm our courts.Of course, much so-called to that. EU law does not need the assistance of the Bill to One specific area is the importance of public health remain in force. It has been passed in primary or safeguards and provisions. Before going further, I note secondary domestic legislation and does not, or does that I am indebted for advice on this matter to the not exclusively, derive force from the EU treaties or Faculty of Public Health—I declare an interest as an the European Communities Act 1972. honorary fellow. Public health in the broadest sense I commend to the House last week’s report by the encompasses everything from pollution to health services: Constitution Committee, of which I have the privilege 1625 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1626

[LORD HUNT OF WIRRAL] to listen to what he said about trying to know and to be a member, and welcome the comments that have follow the will of God, rather than focusing so much been made at various stages of this lengthy debate on humanity. He suggested that we should know what about our recommendations. In contrast to the hyperbole Brexit is about, where it is taking us, what kind of attendant on the release of our report, the possibly society we are seeking and how to get out of this less exciting reality is that it provides helpful and confused and divided country in which we now find positive suggestions to ensure the Bill does the job for ourselves. He gave us much food for thought and I am which it is intended: helping to ensure Brexit can be most grateful for what he had to say. I, too, originate made as smooth and painless as possible. It also from the north—I come from Wakefield, which is part potentially creates the basis for a consensus on how to of the right reverend Prelate’s diocese. I was born make the best of Brexit. My noble friend Lord Strathclyde working class in a council house, and now, a bit like was right to advise: the noble Lord who will be replying, I am living down “If the Bill is to be amended, then let it be done with in London after quite a journey. co-operation and consultation between Back-Benchers and Ministers”.—[Official Report, 30/1/18; col. 1408.] The Brexit vote laid bare divisions in society which Such a consensus would greatly enhance our negotiating many of us had not fully appreciated. In Wakefield, position. 66.3% of the people who voted opted to leave the In dealing with retained EU law,this Bill is necessarily European Union—similar demographics to the people origin-focused and content blind, which could have who voted elsewhere for Brexit. Some of the strongest arbitrary, unforeseeable and, sometimes, undesirable support for Brexit was in struggling areas, where average effects. There must be a significant body of EU-derived incomes, and average education and skills levels, are law which the UK would have adopted in any event, in low and there are few opportunities to get ahead. the same or very similar form. Obvious examples that Working class communities in Britain have been left have been mentioned are to be found in the equalities behind by rapid economic change, and feel cut adrift field and financial services regulation. The practical from the mainstream and marginalised in many places. need for at least some so-called retained EU law Their types of opportunities and life experiences contrast post-Brexit does not, of itself, justify creating an executive sharply with those in areas that are filled with more correction power, still less prescribe the precise scope affluent, highly educated and diverse populations, as or form of any such power. We must ensure that any we find here in London, which gave some of the correction power is compatible with the vital principle strongest support to remaining in the EU. that the Executive must be genuinely accountable to People move to cities such as London, as I did, to the legislature. get jobs and leave communities behind; they are involved Many fear that one unintended consequence of in a brain drain, which increasingly creates further Brexit could be the emasculation of the UK financial inequalities in those communities. Those communities services sector. It is vital that the UK, in negotiating a also have health inequalities. The noble Lord, Lord new free trade agreement with the EU, ensures the Crisp, talked about the necessity of maintaining equality unbroken maintenance of mutual market access for of standards of health, and further improving it. My financial services, ensuring continuity of cover and fear is that Brexit, if anything, will undermine the protection. A suitable transition period will be vital, standards that we presently have and make matters and so too will mutual recognition of prudential regulatory worse. I hear,too, that we have a deal with the Americans, regimes. Both motor and travel insurance require special and that the one thing they are particularly waiting to attention too. I hope we shall maintain a free circulation do is to move into the NHS and get their hands on zone without reintroducing an onerous green card many of the operations there—which in turn is not requirement. Like the noble Lord, Lord Crisp, I also likely to improve the lives of the disadvantaged of very much hope this Bill will help enable the UK to whom I speak. maintain a reciprocal emergency health agreement The reality is that these communities will probably with our friends in the European Union. be the worst hit by the economic consequences of This Bill is but one part of a testing and complex Brexit if we end up with a bad deal or, even worse, no process—a vital part, but one of many. The road deal at all. I would like the Minister to say what he ahead is uncertain and it will be challenging to us all. I thinks the future looks like in the area from whence he believe, however, that our debates here in the next few comes—whether it is going to look better than it has weeks will show this House at its serious, erudite and been in the past, and when it is likely to look better as constructive best. a consequence of Brexit, which he so strongly supports. The other speech that hit me very strongly indeed, 5.37 pm and I believe is in the newspapers, too, was that of the Lord Brooke of Alverthorpe (Lab): My Lords, unlike noble Lord, Lord Bridges of Headley.He had previously the noble Lord, Lord Hague of Richmond, who brought been involved in government negotiations and yesterday two new items to the debate, I do not anticipate that I he strikingly described the dangers to the country of will add anything new.There have been some outstanding drift, indecision and weak leadership. He reminded contributions and I particularly commend the outstanding the House that there are choices and that early decisions speech from my noble friend that we have just heard. need to be made on them, that time is running out and Yesterday I was particularly moved by two speeches. that, without clarity on direction in the negotiations The first was the speech from the right reverend Prelate and within government, there is a risk that the UK the Bishop of Leeds. We have heard much in these might crash out of the EU with a very poor deal or no debates about the will of the people, and it behoves us deal. When we listened to the debate a couple of weeks 1627 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1628 ago, so many contributors from the opposite Benches rights and principles, the hazy scope of its application actually favoured that prospect. I believe that that is of and the effect of having parallel rights in the charter great concern to those who are worried about inequalities and the European Convention on Human Rights, it and divisions in the country. It would be a disastrous becomes clear in the end that the inclusion of the outcome for us. We need to be as close as we can to charter after Brexit would cause more confusion and being in Europe—or, as some might prefer, in Europe. less certainty for business, impinge on the sovereignty A bad deal would bear down very heavily indeed on of Parliament in an unprecedented way, and could the disadvantaged areas around the country, and it is open the door to eternal subjection to the ECJ and time that the Government prepared themselves for EU legal supremacy. Maybe that is what the movers of giving an explanation to those parts of the country amendments to keep the charter in place intend. which voted leave of just what the consequences might The charter was also intended to protect the citizen be if we found ourselves in such a position. That is a against overmighty EU institutions, not necessarily question that I put to the Minister a couple of weeks against his or her own state, for states have their own ago during Oral Questions. A bad deal or no deal democratically enacted rights laws. This was explained cannot simply be accepted by us. We have to have a by the noble and learned Lord, Lord Goldsmith, in his look at how we would handle it, and I believe that we evidence to the aforementioned committee. The then are moving bit by bit towards trying to find a mechanism Lord Chancellor, Mr Kenneth Clarke, was equally whereby the people will have another say. It may be in dismissive in his evidence to European Sub-Committee B another referendum—and that leads me to the third in 2011, when he said, speaker who greatly influenced me yesterday, my noble “the charter … is of more political and public presentation … friend Lord Adonis. If he pushes his amendment to a than it is of deep significance, because it does not actually change vote, I shall support it, even though it is in conflict anything”. with what my noble friends on the Front Bench want. It is odd that those who are now so determined to Another alternative course is that we may find preserve it were once so clear-sighted about its ourselves, with all the divisions in the Government, insignificance. Yes, it has changed, but it has changed moving towards a general election. If that is the case, for the worse. this will again provide the opportunity for the people The charter is insignificant in another way, too. to have a second view on whether the terms for coming What a failure it has been in upholding—let alone out of Europe are acceptable—or, in turn, whether extending—democracy and freedom in great swathes they wish to remain in Europe. of Europe. Poland is undermining human rights and So there is nothing new from me today, just an the rule of law. The latest Freedom House report slates expression of worries—increasing worries since I last many EU states for turning back from civil liberties spoke on the European issue because matters have got and political rights. In Hungary, Austria, Croatia, worse, not better. The country has become diminished Romania and other European states, judicial corruption, and looks worse in the eyes of others. For those who intolerance, xenophobia, racism, domestic violence are thinking and worried about it, it looks worse from and crime are on the rise. Extreme right-wing parties inside, too. I hope that we can get back on track and are on the march in Germany and Greece, and France find a way through, and we must ensure that the has extended its state of emergency for the fifth time. people are involved in whatever the final outturn is. So much for the efficacy of the charter. And it has happened on our watch. 5.45 pm This debate should be about our values. The EU Baroness Deech (CB): My Lords, I deem it appropriate puts a price on everything, but I do not discern its that I am speaking in the presence of my noble friend values. Wehave heard in this House that the Government Lord Pannick and noble and learned friends Lord do not know their destination. But what is the EU Judge and Lord Hope, because I am going to confine destination, save “more Europe” on the sat-nav and myself to Clause 5(4) and (5), which state that the taking every road to the extreme right? No positive European Charter of Fundamental Rights is not a case could have been made for it during the referendum, part of domestic law on or after exit day. because its failures in, inter alia, the euro and management The charter is a novelty, which has only been seen of migrants demonstrate its lack of political virtue. to apply directly in this country since 2013, as the UK, The most radical and dangerous element of retaining under Prime Minister Blair, signed up to Protocol 30 the charter is that it would uniquely give judges the —an opt out. This opt out was ignored by the European power to disapply Acts of Parliament, not just declare Court of Justice, a warning of things to come. It them incompatible with human rights law, as is their started as a political declaration designed to give remit under our Human Rights Act. If the charter is common values to the states of the EU and build a not removed from our law, our courts will be invited to platform for more integration. It morphed into a limit or ignore existing law or EU incorporated law by document with legal status, as explained by the House reference to the list of rights—many of them vague, of Commons European Security Committee report in many of them simply aspirational, such as the 2014, The application of the EU Charter of Fundamental independence of the elderly. I am pleased to note that Rights in the UK: a State of Confusion. It recommended my noble and learned friend Lord Brown supported primary legislation to disapply the charter from the this view. UK by way of an amendment to the European We ought to be proud of our commitment to and Communities Act 1972. When one reads the Commons long history of human rights and the rule of law in report, explaining how the charter would broaden the this country.Lord Reed explained in his famous judgment ambit of EU law, its uncertain distinction between in the UNISON case in 2017 that the rule of law 1629 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1630

[BARONESS DEECH] Ironically, it only occurred to me during this debate, means that this Parliament makes our laws, its members because it was a point made by others, that if the are chosen and accountable to the people, and the European Communities Act is a kind of Henry VIII courts enforce those laws. Brexit means that we return clause writ large, then so, perhaps, is the referendum to that position and to our leadership in human rights. Act. In both cases, Parliament remains the guardian We should ask ourselves whether each one of us of the constitution, the process and its outcomes. feels that his or her rights are better protected by One of the characteristics of the referendum on European law or by the Supreme Court. The core of whether we should leave the European Union was that the argument against inclusion of the charter is that it it was a binary choice. Leaving the EU may be a would bring into our law a set of rights and principles binary choice, but the consequential negotiation of a not enacted by Parliament—not subject to the usual deep and special relationship is not. The two are debate and testing of public opinion—and its scope intimately and irrevocably connected despite being and meaning would change as it was interpreted by clearly distinct. At the time of the referendum, advocates the European courts after Brexit, so we would be of leaving were—and still are—irreconcilably divided bound for all time by a set of norms over which we about what comes next. It seems to me that what had no control and no part in shaping—a charter happens next is, by any constitutional analysis, a matter designed for an institution we had left. Those who are for a sovereign Parliament, which must not loosen its so determined to uphold parliamentary scrutiny by control over how things may develop. I have no idea at limiting Henry VIII powers ought also to appreciate all what will happen, but I suspect that anybody who that the inclusion of the charter keeps that king’s says they do is deluding themselves or trying to delude approach for ever. others. As I said, Parliament is sovereign in this country. It 5.51 pm must impose its control over the politics of what Lord Inglewood (Con): My Lords, unlike the noble happens next; it must be unshackled in doing so and Baroness, Lady Deech, who I am delighted to follow, I be allowed and enabled to decide how matters move will be general with my comments, although I hope forward in whatever way it deems best at the time that my arguments will be focused. those decisions must be taken. That seems to be the Now that Article 50 has been served in response to only acceptable and meaningful effect of the words the outcome of the referendum, we are thereby tearing “meaningful vote”. That, however you look at it, is up our agreement with the other EU member states. called taking back control. As a result, both sides are looking beyond Brexit—through exit, to the world beyond. Naturally, everyone is trying 5.56 pm to secure advantage for themselves. No matter what we do next, be it wise or foolish, it is always better to Lord McKenzie of Luton (Lab): My Lords, we are try to do things sensibly. I entirely agree with those in the final straight and much has been said already. who argue that the right starting point is to aim to Inevitably, our debate today and yesterday has not parachute the acquis into the post-Brexit UK legal been strictly limited to the terms of the Bill, which has system—into which it will morph—and that that has been described—correctly—as a technical process Bill, to be done seamlessly but at the same time entirely in necessary to ensure a smooth and orderly transition line with our constitutional settlement and traditions. out of the EU. I entirely accept the need for such a It sounds easy, but it is not, as the Select Committee Bill, but it was not supposed to cause a rerun of the on the Constitution so helpfully pointed out in its referendum debates, nor the Article 50 process. However, serious strictures about the Bill. Parliament must handle that debate has proved irresistible to some, including me. these matters in accordance with the customary democratic Like many Members of your Lordships’ House, I practices of this country. There is simply no scope for voted remain in the referendum. I did this for a variety exceptions. I do not want to comment further in any of reasons: most authoritative economic forecasts detail at this stage; much has already been said, and a predicted higher growth if we stayed—a matter seemingly great deal more will be, in Committee and on Report confirmed currently if press reports are to be believed—but and I will be inclined to support a number of amendments. principally because I am comfortable with the deep We all know this is happening in the midst of and special relationship that exists at the moment political turmoil. In a more aggressive age or country, between the UK and other member states. It is a I dare say there might be civil war or violence on the relationship where we work together to improve the streets. Society is split down the middle. When all this economic, social, cultural and environmental well-being is over, the nation will need to coalesce again. In the of some 740 million people—a relationship that, by meantime, there are real worries among all categories and large, has fostered peace and prosperity. of opinion. It seems to me that the manner of the I have not changed my mind since June 2016 and I future of the conduct of public business may be of have looked on with sadness and increasing anger as equal importance as its substance, because the eventual we stumble through the consequences of the decision outcome must be seen as legitimate, not least by those to withdraw, undermining our standing in Europe and who disagree with its merits. Rules of procedure, which the world, with Ministers squabbling—making a nonsense sometimes seem—and in reality often are—pedantic of strong and stable government—and the internal and dull, are put in place not least to protect the weak wrangling of the Conservative Party failing to offer a and minorities. If they are ignored or rolled over vision for what they see as a post-Brexit world. With roughshod, longer term discontent is embedded, to the benefit of hindsight, I consider that the referendum the disadvantage of these groups. was an inappropriate mechanism to determine such a 1631 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1632 complex issue as our future relationship with the hierarchy have a deep antipathy to aspects of health EU—certainly without thresholds and detailed impact and safety. We must keep a watchful eye on this and assessments. Neither remainers nor Brexiteers could seek enhanced protections. seriously have predicted the full range of consequences I conclude with a final observation. The project to from and the complexity of leaving. I certainly did not. withdraw from the EU and untangling more than Although we can lay this fateful approach at the 40 years of shared history is engaging a substantial feet of David Cameron, do we not bear some collective national effort. Apparently, the brightest and best of responsibility for not bringing greater challenge to this the Civil Service are engaged on it, cross-government process? But we are where we are. A referendum was activity is enhanced, new legislation is kept to a minimum, the decision mechanism offered to the voters and they the routine business of government is pushed to one are entitled to see it respected. However, this should side, parliamentary time is almost unlimited and, as not preclude them from having a chance for second we have seen over the last couple of days, record thoughts when they have the detail of the negotiation numbers of Peers are participating in our debates. outcome. How and when that second chance should This is as it should be in my view, but why on earth can be available, for how long we can assume Article 50 we never seem to manage the same national effort and can be reversed, and whether the second chance should focus when we are dealing with the desperate needs of be by way of a further referendum or a general election the homeless and the poor in our country? will not be settled by this Bill. But either deserves at least consideration. 6.02 pm I support the approach to this Bill, which my party has argued should be an enabling measure and which Lord Storey (LD): My Lords, in opening what should reinforce the Prime Minister’s commitment to many of us believe to be the most important debate in hold a vote in Parliament before the European Parliament any of our lifetimes, the Lord Privy Seal the noble considers the agreement. I also support it seeking a Baroness, Lady Evans of Bowes Park, spoke of this temporary extension to participation in the single Bill as ensuring that, market and customs union on current terms—indeed, “we have a functioning statute book on the day we leave. It is the longer, the better. Further, for myself, I hope that about providing certainty and continuity for people and businesses. somewhere along the line we may find a way to offer It is about ensuring that people’s rights are upheld and legal the British public an opportunity to determine whether protections are maintained”. they wish to change their mind and remain in the EU, She went on to say that, or at least the single market and the customs union. “as far as practical, the same laws will apply the day after exit as So far as the Bill is concerned, as others have said, it the day before”.—[Official Report, 30/1/18; col. 1373.] is complex and dense and unconstitutional in parts. I want to talk about a group of people living in our We should be grateful to the Select Committee on the country—namely, children—and about people not yet Constitution for its formidable analysis which will born. If the comments of the noble Baroness, Lady better enable us to carry out our role to scrutinise and Evans of Bowes Park, are to mean anything, we must revise. ensure that laws are also in place to protect the rights On points of detail, other noble Lords have already of the child the day after exit—children’s rights. Much expressed concerns over what the future may hold for of the hype about what withdrawing from the European workers’ rights. In Committee, I propose in particular Union will mean for the United Kingdom is about to pursue related matters of health and safety and taking back control of our future. A critical part of enhanced protection for EU-derived rights. It is true our future depends on our children, who will have to that most EU-derived health and safety laws are already live with the consequences of our actions. transposed and will therefore be retained, although While a large number of us in this place are not the REACH provisions will need an equivalent UK supporters of withdrawing from the European Union—if, version. But the change in the status of the health indeed, we do take that final step—we must, and and safety provisions is that under these proposed would surely want to, protect and enhance the rights arrangements they can in future be changed just by of every single child. Currently, three mechanisms secondary legislation. Currently, they are underpinned operate together to ensure that children’s rights are by the European Communities Act 1972. protected: the UN Convention on the Rights of the We can be proud of our health and safety record. Child, the European Charter of Fundamental Rights As our briefing from the TUC records, EU standards and the European Convention on Human Rights. have led to the introduction of broad duties on employers Domestically, as far as I understand it, no explicit to evaluate, avoid and reduce workplace risk. EU commitment to children’s rights exists at government directives have also led to safeguards in high-risk level. While the Human Rights Act 1998 offers some sectors such as construction. The health and safety protection for our children’s political and civil rights, system in the UK has been separately reviewed and its provisions do not reflect the full scope of the UN broadly supported by a number of reports: the review Convention on the Rights of the Child. It was so of the noble Lord, Lord Young, Professor Löfstedt’s important that the noble Baronesses, Lady Massey review and the HSE’s triennial review. We should and Lady Lister, and the noble Lord, Lord Russell, acknowledge that the Government are on record as talked about the rights of the child in yesterday’s committing the UK to continue to guarantee health debate. The right reverend Prelate the Bishop of Leeds and safety regulations but, of course, we do not know spoke of the Brexit debate being clothed in purely who will be pulling the strings in the future. We do economic terms, as set out on the now infamous battle know from prior experience that some in the Conservative bus with its livery of £350 million. We have also heard 1633 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1634

[LORD STOREY] our very eyes. Like Ian McEwan, I find it hard to much before and after the referendum about the need believe that we are not dreaming a nightmare—that it to protect borders, trade and British values. But, as a is not happening. But it is happening before our very country, the UK must also protect children and their eyes.While I defer to the huge assemblage of constitutional rights. and procedural experts in our House, who I hope will Young people very much regard themselves as guide us into safer territory on this truly miserable, but European. As a matter of fact, 71% of 18 to 24 year- unfortunately necessary, Bill, I have no enthusiasm olds voted to stay in the EU. That is perhaps why the even for seeing its passage sustained and returned to Government were reluctant to give the right to vote to the Commons, for it is part and parcel of the incompetent 16 to 17 year-olds. Under the Erasmus programme, and selfish Government we have to endure for at least thousands of EU students annually go to study in a bit longer, alas, under our clumsy system, where another European country for up to a year funded by defiance of wisdom and common sense is now the the EU. In 2015, for example, 30,000 young people daily government routine. came to study in Britain and 40,000 Britons travelled Our colleagues in other EU countries cannot believe to learn in other European countries. Although we are that this is happening either. They think we have gone in the programme until 2020, what happens after that mad, and after the PM’s catastrophic blunder with date is anybody’s guess. “Brexit means Brexit,” for which she still has to ask Of course, young people in Northern Island will be forgiveness,the Government have no authority whatsoever able to study, work and play in Europe unrestricted for pursuing this insane course of action simply because after Brexit by virtue of the Good Friday peace agreement, she is scared to death of Boris Johnson and even—would which allows them all to have dual nationality. Do you believe?—Jacob Rees-Mogg. She might have had noble Lords remember the high drama over the frictionless a mandate before the last election, but the 8 June 2017 Irish border issue, with the Prime Minister flying to election result killed that stone dead. Above all, the Brussels early in the morning, having secured a fudge— Government’s main sin has been to ignore the needs sorry, agreement—from the DUP,the same DUP which and wishes of our precious younger generation, all for wants Northern Ireland to be treated in exactly the keeping a reactionary minority in their own parliamentary same way as the rest of the UK? How does that work, party in unstable nagging for a new order which is when Northern Irish residents will be able to travel to 100 years out of date. What a total, utter shambles. the rest of Europe unhindered, while citizens in England, The PM now goes off to China to avoid scrutiny at Scotland and Wales will not be afforded the same a bad time, when sensitive documents have been falsified rights? Perhaps the Minister, who avoided the question and concealed, but more and more people in Britain asked by my noble friend Lady Walmsley the other now, at long last, realise that the whole farce is coming day, might answer that directly at the end of this to a head in certain, painful inevitability. Meanwhile debate. crushing, pressing domestic problems are ignored: a I end where I started. I very much hope that the huge housing crisis, a crisis of poverty and inequality, Minister will agree with the noble Baroness, Lady Massey, a crisis of rough sleeping in unprecedented numbers, a who said in yesterday’s debate: crisis in our National Health Service—all ignored by “We should expect from Ministers a commitment to have this Prime Minister obsessed with only one subject, due regard to the UN Convention on the Rights of the Child, and Brexit. This will be revealed when the trade part of this should be incorporated in law”—[Official Report, 30/1/18; negotiations resume after the European Council takes col. 1438.] place in March. that is, UK law. In my recent PQ on trade deals to the Minister on the Front Bench, I asked if the exercise in total insanity 6.07 pm of having to negotiate now up to 70 new agreements Lord Dykes (CB): My Lords, I hope that I will not with countries which already have agreements with the annoy any Members by deliberately putting myself EU will take place after 19 March. The answer was out of order, particularly with the Treasury Front confirmed: “Yes, that is what will happen”. Indeed, it Bench, but I hope that the unusual incident at Question is not hard to imagine that the talks will eventually Time will none the less result in the noble Lord, Lord just peter out. It is actually possible that that will Bates, reconsidering his decision and remaining on the happen. In his excellent speech yesterday, the noble Front Bench. Apart from his invaluable merits, he is Lord, Lord Foulkes,reminded us chillingly that 19 months such a rare example of a popular Conservative Minister. had already elapsed since the PM took over, and that Therefore, it is even more important for him to be only 13 months remained to the target date. retained on the Front Bench. I should not have made There is no need at all for the exasperated EU those remarks and apologise for having done so. negotiator and his colleagues in the EC and the Council I thank the noble Lord, Lord Storey, very much for to seek to help us out of a crisis of our own creation, placing an emphasis on children—that is the first time thanks to the handiwork of the most maladroit Prime that has occurred in this debate—rather than on the Minister in the whole of post-war history. Meanwhile, 16 and 17 year-olds who we always think about. It is the long-suffering British people are enduring the such an important issue for the future of this country. derision of the rest of the world, with the dodgy The issue we are discussing is not just a nightmare, exception of the worst President in US history.Eyebrows it is the greatest tragedy to have faced our country in are still raised here and in the EU about the artificial the whole post-war period. The Bill itself is yet another and pork-barrel opportunism of the immoral agreement, detailed reminder of the great tragedy unfolding before after a £1 billion bribe of taxpayers’ money, to the 1635 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1636

Northern Ireland DUP,an unsavoury bunch of extreme No matter how you voted in the referendum, “taking right-wing Protestant enforcers, led by an equally back control” is a powerful idea, so we should use this questionable First Minister. moment to strengthen our democracy and the sovereignty I live in France as well, and in countries like that of this Parliament. Our report, I think, points the way. with a sensible framework for good governance and a For example, it recommends that the Bill clarify—as written constitution, such a deal would probably have the noble Baroness, Lady Taylor, and the noble Lord, been deemed out of order by the council of state and Lord Norton, explained yesterday, and to which my maybe even the constitutional court. noble and learned friend Lord Mackay of Clashfern gave his benediction today—the status of retained EU law as primary legislation replacing what the report Lord Cormack (Con): My Lords— describes as, “the ill-fitting ‘supremacy principle’—a European legal concept”, Lord Dykes: I do not really want to give way, if my with the UK domestic principle of the primacy of the noble friend will forgive me, because of time. It would most recent Act of this Parliament. Where we can be unfair. I am concluding my remarks now. Oh, I give safely replace in this Bill the risk of confusion with way. greater clarity and European legal concepts with British ones, we should do so. Lord Cormack: Well, he is an old friend, but I just I will focus the rest of my remarks on the Bill’s want to know where he picked up his very moderate devolution implications, which many other noble Lords vocabulary. have touched on. Like every unionist I want to ensure that, as we leave the EU, we do not inadvertently jeopardise our union of four home nations. Indeed, Lord Dykes: It is a circumstance of the urgency and handled carefully and sensitively, the process of exiting the emergency in this country of this great and unfolding the EU can strengthen intergovernmental relations tragedy. within the UK and give our union a renewed sense of I appeal today, therefore, to the cowed bunch of purpose. pro-EU Tory MPs, for whom I have great respect, to In the case of Scotland, it is notable that, contrary find the strength to put country before party and save to expectations, not least of the SNP Government, Britain, especially for the younger generation of our Scottish opinion has, if anything, swung against Scottish citizens, who are also citizens of the EU under Maastricht. independence as the exit process has continued. The They and others too, who are older, deserve better. Bill confers on the devolved Administrations powers They understand, like all the other member states, that parallel to those of UK Ministers to correct deficiencies individual sovereignty within the Union goes hand in in devolved areas. Clause 11, however, amends the hand with collective sovereignty. They are proud of devolution statutes to restrict competence in relation the collective power that this gives each member state. to retained EU law. Even small member states are proud of that combination of national and group sovereignty. Clause 11 has been criticised as a UK Government power grab and as offending a fundamental principle There is still time to reverse this utter madness. The of devolution, where what is not explicitly reserved by Lords needs today to send out the crucial message of the UK Parliament is devolved, as the noble and modernity and the future together. I came into politics learned Lord, Lord Wallace of Tankerness, noted as a humble helper of Edward Heath, who bravely yesterday. The Government have explained Clause 11 took us into membership with the critical help of as being transitional, to provide an orderly process for 68 Labour and other MPs. I pray that this time, too, agreeing with the devolved Administrations where the Labour Party from now on, led by Jeremy Corbyn powers repatriated from Brussels are best exercised and others, will rise to the occasion to save Britain and what common UK frameworks are needed, and to when the time comes. do so in a way that both respects devolution and protects the integrity of the UK single market—a market which, 6.15 pm in the case of Scotland, accounts for 63% of its trade. Lord Dunlop (Con): My Lords, I should start by As a former Minister with some recent involvement confessing my membership of the Constitution in these matters, I accept that I am perhaps more Committee. I say “confess” because, as the noble Lord, inclined than others to accept the Government’sassurances Lord Beith, mentioned, Monday’s Daily Mail took the at face value. Certainly, the UK Government’s recent committee to task to some degree, describing it as a devolution record is not the behaviour of power-hungry committee filled with “Remoaners”. As noble Lords centrists—quite the opposite. However, I also accept, may imagine, this came as something of a shock to me. like many others on all sides of the House, that Clause 11 I had not before realised this until I read it in the Daily needs amending. As one of the witnesses who gave Mail—and I must say that it has shaken my faith in evidence to the Constitution Committee put it, the Daily Mail as a paper of record. “Clause 11 stacks the cards in favour of the centre”. This debate has been conducted in a generally Clause 11 unamended would mean that if common constructive way. That is the spirit in which the frameworks cannot be agreed, the default will be that Constitution Committee approached its task. Our report power remains at Westminster, and what is intended to proposes, be transitional will become permanent. We need a “a number of practical measures to address the flaws in this Bill clause that is more balanced and which gives the UK without jeopardising the achievement of its objectives”. Government and the devolved Administrations similar 1637 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1638

[LORD DUNLOP] safely across into UK law the 80% of our legislation incentives to reach agreement. So I welcome the on the environment that is European. We have taken a Government’s commitment to amend Clause 11, and major role in the past in developing these laws within to do so with the support of the devolved Administrations. Europe and shaping them over the last 40 years, and But in considering Clause 11, I hope the House will they have considerably raised environmental standards bear in mind two things. First, the 1998 devolution so that people can enjoy cleaner beaches, cleaner air settlements were drawn up on the assumption of EU and water, better safeguarding from chemical hazards, membership. As such, devolved Administrations are and improved protection for wildlife and habitats. The already constrained within their areas of competence. noble Baroness the Leader of the House says that the They cannot make law that is incompatible with EU Bill is simply technical and transfers all that effectively— law. As the noble and learned Lord, Lord Hope, noted but it does not. It will need considerable amendment. in a debate last Thursday, removal of this constraint On environmental legislation, the Bill fails to transfer will leave a void, providing, as he put it, across important environmental principles that have “a wonderful opportunity to create something new”,—[Official informed policy, law and judgments over the years. Report, 25/1/18; col. 1102.] That includes principles such as “the polluter pays”, in place of it. I agree very much with what he said. The the precautionary principle and the principle that need to replace the void should be interpreted not as environmental damage should be rectified at source. rowing back on devolution but as a sensible step to The Government have indicated that they will come ensure that the UK continues to work effectively as a out with a new policy statement on these principles. whole outside the EU. But policy statements do not have the force of law, as Secondly, just as we should avoid stacking the cards is currently the case. in favour of the centre, so we should also avoid stacking Then there is the status of this law when it has been the cards in the opposite direction. If absence of transferred over. I much commend the position taken agreement means that all powers flow, come what may, by the Constitution Committee that the retained law to the devolved Administrations, their incentive to should be regarded as primary legislation. This law reach consensus going forward will be weaker. Moreover, was originally agreed by a high-level democratic process I do not believe that one part of the UK should have and must not be able to be changed at the whim of a an effective veto over essential measures to protect the Minister by secondary legislation at any time in the future. interests of the UK as a whole—interests that this The Bill also fails to provide common frameworks, Parliament exists to uphold. as the noble Lord said, to enable England and the I conclude on an optimistic note. The devolved devolved Administrations to work together on Administrations accept that common UK frameworks environmental standards which will underpin future are needed, and the UK Government recognise the international trade and future internal co-operation. importance of obtaining their legislative consent for Strangely, the environment does not recognise national the Bill. That is a good foundation on which to build boundaries. Most importantly, however, the Bill fails agreement. I hope that it can be built quickly; I believe to provide a substitute for the powers to hold government it can. and public bodies to account for failing to meet environmental standards, which the current EU 6.22 pm monitoring, reporting and infraction processes provide. Baroness Young of Old Scone (Lab): My Lords, I Nor does it transfer across access to environmental declare an interest as a remainer and I will focus on justice for citizens. the deficiencies of the withdrawal Bill in respect of In the 25-year environment plan the Government environmental issues and how they must be addressed. have undertaken to consult on a new, independent But, to be honest, it grieves me considerably that we body to hold government to account on environmental are going to spend months of effort simply to ensure performance. Can the Minister assure us that this that we get back to where we started on EU legislation—all consultation will take place before the final passage of this just to keep the laws we worked hard to shape and the Bill and that it will clarify the roles, powers and develop in the past 40 years. It reminds me of that bit sanctions that the new body will have so that we can in Winnie the Pooh where Pooh and Piglet wander all judge whether it will be sufficiently independent round in circles, lost in the woods, before they finally and effective to take the place of the European provisions? come back to exactly the same point. Pooh says—as Can he also assure us that the new body will be up and only he can: running before the demise of the European Court of “I’m not lost for I know where I am. But however, where I am Justice’s provenance so as to leave no gap into which may be lost”. environmental remedies can fall? This could be a good motto for the Government in So a lot of amendments to the Bill will be required. their dealings with Brexit. We will have hours and hours of happy fun in the Proponents of Brexit will of course say that the benefit woods. However, even once the Bill has passed, more is taking back control of legislation. But the reality is than 800 environmental provisions will have to be that, with every trade deal we strike in the post-Brexit amended by statutory instrument to remain operable. world, we will be agreeing to surrender some sovereignty The Government tell us that these will be minor over standards of many kinds. That is the nature of tweaks, but we cannot judge whether they are really collaborative international agreements. just tweaks, inadvertent changes or—dare I say it?— So the people have spoken—well, just over half of deliberate, more substantial changes. Personally,I believe them have—and they may well speak again. In the in the cock-up theory of history and therefore that meantime, the task in hand with the Bill is to bring they may be inadvertent, but we could all help to keep 1639 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1640 the Government honest on these if they were published, leaders in the certain knowledge that their demands open and consulted on before the final passage of the are unachievable. I caution all sides, in the national Bill—otherwise we are buying a pig in a poke. interest, to exercise some responsibility in their public It breaks my heart that Brexit is happening and that posturing. As the right reverend Prelate the Bishop of therefore we need the Bill. But we do need it and it Leeds said so eloquently yesterday, politicians should needs to be much amended if precious environmental engage in respectful discussions and be less tribal— law is to come safely across—simply, alas, to maintain sentiments also expressed by my noble friends Lord standards where they already are. I therefore encourage Strathclyde and Lord Hunt of Wirral today. Pooh, Piglet and perhaps even Eeyore to come back We have to accept that each member of the EU 27 into the woods. has its own agenda for the discussions, and we need an understanding of those agendas to be able to negotiate 6.28 pm a practicable solution. Take Germany as an example. In 2017 Germanyis estimated to have enjoyed a substantial Lord Lupton (Con): My Lords, we are in the twilight budget surplus of some ¤28 billion—an enviable zone of this long debate. I am speaker No. 161, and I position—and in the 11 months to November 2017, a have been positioned as the filling in a rich Young-Judge trade surplus of a staggering ¤225 billion. Meanwhile— sandwich of the noble Baroness, Lady Young, and the this number is difficult to extract from the public noble and learned Lord, Lord Judge. I will direct my documentation—it is believed that Germany has lent comments to three general points, the first of which is over ¤500 billion to the European Central Bank, and referenda. the ECB has lent ¤590 billion to Spain, Italy and I have no doubt that referenda sit very uneasily with Portugal. Notably, this number does not include Greece. our long-established system of parliamentary democracy, You could argue, therefore, that Germany has a huge which for many years appears to have worked in the interest in discouraging other possibly wavering nations least bad way you can expect government to work. I from leaving the EU, and in maintaining the stability have no desire to see referenda on extremely complex of Europe—especially the eurozone—as it is effectively decisions become the norm, and I believe that a propping up a relatively weak currency with loans to referendum on the terms of our exit from the EU—which the struggling south, funnelled through the ECB to would give a second bite of the cherry to a minority spread its credit risk. No wonder then that many who did not like the result they got in 2016—would believe that even the main German industrial lobbies weaken our constitution. I say that as somebody who support taking a relatively hard line with the UK, both voted and campaigned to remain in the EU. My reasoning that the sanctity of the single market is noble friend Lord Hamilton of Epsom, in an enthusiastic more important than losing some BMW or Mercedes speech yesterday which included a confession of possible car sales to the UK. future civil disobedience, raised some practical and This is absolutely not the time to play partisan strong objections to the details of when, what and politics; this is a time to show statesmanship and work how any referendum would be conducted. My objection towards an achievable result that works best for the is more fundamental, and I can do no better than to nation, and which complies with the result of a referendum refer to the impassioned, tub-thumping words of my that this House and the other place approved in 2015. noble friend Lord Patten yesterday when he spoke so However naive it sounds in today’s Alice in Wonderland eloquently against referenda. This was echoed today political environment, what I ask for—and believe the by my noble friend Lord Hague. nation should, and does, expect—is that we find a Secondly, coming from the world of business and common purpose around which the national interest commerce, I find it perplexing to read demands for the can coalesce. I very much hope that our debates on the democratically elected Government’sdetailed negotiating Bill over next few weeks will seek to do that. position to be published. What an absurd notion, and how damaging to the nation’s interests such a demand 6.34 pm is. The electorate usually shows itself to be more Lord Judge (CB): My Lords, without this Bill exit discerning than we parliamentarians,colourfully described day will be an Armageddon of legal chaos. Governments, by my noble friend Lord Ridley yesterday as, “popinjays” public authorities and every single citizen will be in a and “panjandrums”. The electorate will see through any complete mess; he or she will simply not know where theoretical or intellectualised argument to the contrary, they stand. I welcome the Bill. The result, of course, since the truth is so obvious will be that parliamentary sovereignty will be restored. Poker players—or bridge players if you prefer Parliament will no longer be subject to the supremacy something more genteel—do not disclose their hands of European law. The Bill itself speaks about this, but until the bidding is done, and nor should our Government I do not understand why. It is a concept known in in the Brexit negotiations. Yes, it is reasonable to Europe, not a concept known in this country. When expect the Government to define the broad parameters we leave Europe, the concept of European supremacy of the negotiation, but this notion that we must receive will simply be ridiculous. a blow-by-blow account of the detailed talks is for the This means that all the laws sent to us by Europe birds. I think, however, we can expect the Government for the last 40 years or so will have legal force, not to comfort us that they know, when entering the room, because they come from Europe but because, and only whether they are about to play bridge or poker. because, our Parliament has in effect re-enacted them Finally, I find it interesting that we are now in a for as long as it wishes them to stay in place and made world where spokespersons from both sides of the them part of our constitutional arrangements. That, Brexit debate demand this and that from our political indeed, is parliamentary sovereignty. The summary, in 1641 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1642

[LORD JUDGE] occasion being 1979. In this House, it has happened the end, is this: the supremacy of European law will be six times. On the last occasion, we were nearly drummed at an end and the ultimate law-making power will have out of existence for having the nerve to take on the returned home. Government over one of their regulations, which was This Bill duly honours the result of the referendum. to do with the £4.5 billion arising from tax credits. I shall not spend time arguing the merits or demerits Incidentally, I hope everybody realises that Mr Osborne of the decisions that have been made by this country—we was using powers given to him by a Labour Government. have heard quite a lot of them. I just want to draw That is the problem. attention to this: a little scrutiny reveals the flaws in My time is nearly up. When we come to look at the this Bill, and we must rectify them. The Constitution Bill, can we please examine whether it gives more Committee has identified a whole series of problems powers to the Minister than he or she should ever have with it, and I shall not repeat them. I want to make a and whether we should control the Executive better much broader point arising from the Constitution than we do? If we do not do that now with this Bill, we Committee’s report, but also from any reading of this will never ever recover the opportunity to do so again. Bill. Looking at the Bill as a whole, with the excitement of sovereignty returning home, I ask rhetorically: does 6.41 pm the Bill as presently drafted, simultaneously serve to reduce sovereignty, not in constitutional theory, but in Lord Monks (Lab): My Lords, I want to follow the constitutional practice? line of argument developed by the noble and learned Lord, Lord Judge. In fact, a number of speakers in For the last 40 years parliamentary authority over this debate have called for a meaningful role for Parliament the Executive has steadily diminished. It is no good in the Brexit process. Indeed, the noble Lord, Lord fooling ourselves: that is what has been happening Hague, was characteristically eloquent on this subject, whichever party has been in power, and even in the and tonight I want to address the role of Parliament in time of a coalition. Perhaps this is because, under our the withdrawal process. obligations under the European Communities Act At the moment, Clause 9 gives Parliament one 1972, we had to accept laws. Perhaps it is because time meaningful vote on any deal at the end of the talks. is shorter than it was.However it has occurred, Parliament That is fine and I congratulate those who promoted it, has acquiesced and perhaps been blind to the problem. but some of us suspect that the context for such a vote Regulation-making powers have been strewn around will be “vote for the deal or face the cliff edge”. There Ministers like confetti at a happy wedding. Not a will not be too many other options around at that single Bill comes before this House in which there are time. That will be being said not just by our government not regulation-making powers. The last Bill we looked negotiators but by EU 27 Governments as well. at, the Sanctions and Anti-Money Laundering Bill, was nothing but regulation-making powers. There was My key point in this debate is: what about a say and nothing in it except for regulations or regulation-making a vote for Parliament at an earlier stage, specifically on powers. the mandate that the Government should follow in the talks about the future of UK-EU relations? At the I take these figures from The Devil is in the Detail, a moment, we have the Prime Minister’s red lines in marvellous book by the Hansard Society.Do we appreciate the Lancaster House press conference speech. She that every year 12,000 pages—12,000 small-typed rules out membership of the single market and the pages—of laws are made by regulation? I wonder who customs union and a continuing role for the ECJ. We reads them all—nobody. That is the result of vesting had warmer words from her in her Florence speech power in the Executive. So if parliamentary sovereignty and we have had a mixture of incompatible objectives is to mean what it says, law-making by Ministers and wishful thinking from individual Ministers, but should be reduced. We should look very closely when none of that carries the authority of Parliament at we decide that we are going to give these law-making this stage. powers. The EU, on the other hand, is currently developing This Bill as drafted, undoubtedly enhances ministerial clear mandates on the transitional arrangements, as law-making. In theory, that is all fine—there is we saw earlier this week, and in March it will develop parliamentary scrutiny.In the Commons,the Government one on the future relationship with the UK. But when accepted an amendment saying that there would be a do the UK Parliament—especially the other place, to sifting committee, and the Leader of the House suggested which I certainly cede superiority in this matter—and that she would have the same arrangement here. That the devolved Parliaments and Assemblies, which will is fine—till when? Do your Lordships realise what the also need to be engaged, get to debate the UK’s sifting committee’s power actually is? It is the power to approach and give the government negotiators a clearer require an affirmative rather than a negative resolution mandate than they have at the moment? Sure, we will procedure. get to commentate in our own committees and in Again, I am taking my figures from the book that I various debates in this House, but we will not play a have recommended, and I do recommend it—the central role in the process, and that is not good enough. summary is very easy. The whole book is pretty well As many people have said, the Cabinet is in a written but when noble Lords have read the summary, muddle over how to take this forward, yet Parliament they will not need to go much further. It tells us that is exerting no pressure on it to get its act together and since 1950 170,000 statutory instruments have been come up with coherent and practicable positions for made. Of those, 17 have been rejected—that is, 0.01%. negotiating with the EU.As an old trade union negotiator, That has happened in the Commons 11 times, the last I am, like the noble Lord, Lord Lupton, all for giving 1643 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1644 flexibility to negotiators, certainly once the talks start, we are now, the only question, to which I will return, is but starting the talks without clear,practicable objectives whether two wrongs would make a right. Today, I is inviting disaster. We need to know whether we are want to make some points in my role as a former playing bridge or poker when we go into these talks. Cabinet Secretary and head of the Civil Service, and At this crucial stage in our island’s story, to progress in other roles as an economist. I declare various economic these negotiations without a parliamentary mandate is affiliations as listed in the register of interests. careless and undemocratic. It is the opposite of taking I admire, but do not envy, my successor, who is back control. It certainly repeats many of the earlier trying to implement the Government’s policy on Brexit, mistakes to which the noble and learned Lord, Lord whatever that is. Although there has been an inevitable Judge, referred in terms of the relationship between and much-needed increase in the number of civil Parliament and the Executive. servants working on Brexit, Civil Service numbers Therefore, we need to amend the Bill to provide for overall continue to fall as efficiency improvements are a second meaningful vote in Parliament—this time on delivered. But Brexit is inevitably squeezing out almost the mandate for the talks about the future relationship. everything else. This, if adopted, would force the Government, and Despite these challenges, morale in the Civil Service, others, to take a position before setting off to see as measured by the annual engagement surveys—and Monsieur Barnier. It is time for Parliament to exert I like evidence—is at an all-time high. So it is particularly some control over the withdrawal process, and in due disappointing—I was very grateful to hear the support course there will be an amendment drawing on all expressed by the noble Baroness, Lady Blackstone—to corners of the House to this effect. My preference—I see a divided Cabinet resorting to attacking the civil will be frank and lay my cards face up on the table—is servants who simply want to implement whatever policy for a mandate that prioritises jobs, rights and trade, as Cabinet finally decides upon. The progress made to called for in an excellent briefing from the TUC, which date and the fact that we have successfully moved on I commend to all noble Lords. to the next stage of talks is witness to the hard work I have always been comfortable with the shared that is going on behind the scenes. Civil servants sovereignty concept of the EU. I have never found it across a range of departments are delivering detailed restrictive; the EU has given us extra scope, extra analysis. Businesses, trade unions—as the noble Lord, reach and extra power. It has not restricted anything Lord Monks pointed out—and think tanks have provided at all in just about every single case. However, I accept their input. The bickering and blaming of civil servants that if Parliament votes on a mandate, the vote might needs to stop. Cabinet needs to formulate a policy for go the other way. To some extent, that would settle the the next crucial stage. The EU 27, and we should learn direction of travel, because that direction is not settled from them, have been strengthened by having a clear, at the moment. I will be looking for support from all public negotiating position—we need one as well. sides of the House for an amendment along those For the next stage, I would say, now is the time for lines to be moved in Committee and on Report, making experts. We need Ministers to stay in post for long that crucial point and returning power to Parliament— enough to master their briefs. Listening to the noble which I think was one of the objectives of the leave Lords, Lord Hill and Lord Bridges, makes me realise argument in the referendum. how much expertise has been lost. Cabinet should abide by the principle—that very old principle—of 6.47 pm collective responsibility. By all means argue in private, Lord O’Donnell (CB): My Lords, this Bill started but please present a united front in negotiations. life as an oxymoron—let us be honest. The great On the economic aspects, I hope that Ministers and repeal Bill repeals some EU law but transposes it back civil servants will study the wealth of analyses that is into UK legislation, and what we have heard today has now being undertaken by a number of groups, such as made it clear that it is not that great either. As many the Trade Knowledge Exchange, which I am involved have already pointed out, it has numerous technical in, which are all committed to helping us get the best and constitutional defects. As a former head of the deal possible. Their analysis highlights that the benefits Treasury, I salivate at the prospect of raising tax via of a good trade deal with the EU are worth far more statutory instruments, but that is probably best avoided, than the amounts discussed in the first stage talks and, as the noble and learned Lord, Lord Judge, pointed I would argue, far more than deals with third countries. out. As Pascal Lamy, the former head of the WTO, has The Constitution Committee’s points seem broadly pointed out, the big costs in trade terms come from sensible and I hope that the Government can accept regulatory divergence. Yet the ability to diverge from them. The treatment of Scotland, Wales and Northern EU rules is regarded as a big benefit by some. It is also Ireland in the Bill leaves me very puzzled. It is indefensible. true that trade deals with third countries will require I assume that we will be coming up with a new version similar regulations. Such deals will be governed by of Clause 11 and that that will be cleared with the what I would call the tug of regulatory gravity, meaning devolved authorities; otherwise, we will be completely that the bigger partners, such as the US, China or stuck on that. India, have the biggest say in determining the rules. The Bill’s origin dates back to then Prime Minister The right reverend Prelate the Bishop of Leeds Cameron’s decision to hold a referendum, which, in reminded us that there is more to a good life than just my opinion and to misquote him, was a disaster, not a prosperity. It is very interesting that those parts of the mistake. I am a believer in parliamentary democracy, country with the greatest inequality in self-reported not government by referendum. However, given where levels of well-being were the areas where the leave vote 1645 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1646

[LORD O’DONNELL] So I bring your Lordships joyous news. It is a photo was strongest, and we should really analyse why this opportunity to be shared in social media and across all vote took place. We do not have the time to go into TVs, all platforms, all devices all over the world. It that here, but it is a very important point. immediately goes viral and is downloaded 1.2 billion Jobs matter for well-being and the recently leaked times in 43 seconds—a global media sensation. There document on various scenarios backs up most of the are three people in the picture: German Chancellor public research that has been available for months. It is Merkel, French President Macron and, standing between not new; it has been around for a long time. It has them and slightly in front of them, British Prime shown that growth will be significantly lower outside Minister Theresa May. The backdrop is the Eiffel the EU than it would otherwise have been. I know Tower in Paris. Chancellor Merkel speaks first. She counterfactuals do not make for slick soundbites, but says: “Today, every citizen of Europe gives thanks to the time for those has gone, as the noble Baroness, British Prime Minister May for this historic agreement, Lady Smith, has said. Fortunately, the world is going signed by us, which guarantees the peace, prosperity through a period of strong growth, including in our and security of all the people of Europe”. A spectacular number one trading partner, the EU, so our headline fireworks display then illuminates the Eiffel Tower and growth figures will not look bad—unless, of course, the whole of the sky above Paris is dazzling red, white you compare them with the rest of the world. Lower and blue. growth means lower tax revenue and lower public The Prime Minister comes home in a special plane spending, and that has implications for the NHS. of the Queen’s Flight. She is driven to Buckingham So, assuming this Bill is amended sensibly, I will Palace to inform Her Majesty the Queen of her progress. hold my nose and join my esteemed predecessors, Returning to Downing Street through crowd-lined including the noble Lords, Lord Butler,Lord Armstrong streets under a pale May sun, the Prime Minister and Lord Wilson, who have spoken in this debate, in speaks—a lone figure, standing at the now familiar supporting it. By the autumn we should know more lectern outside the door of No. 10. She announces: about the kind of deal that is on offer. The noble “We are no longer a member of the European Union. Lord, Lord Lisvane, gave us that brilliant analogy last We are now a partner of the European Union”. The night. Will it be more “The Texas Chain Saw Massacre” crowd roars its approval as she reports: “All our red or “Reservoir Dogs”? We do not know yet. lines have been achieved. We are no longer a member For me, the issue of how Northern Ireland is treated of the single market. We are now a member of the will be a determining factor. I have absolutely no idea single platform. We are no longer a member of the how you reconcile regulatory alignment and no hard customs union. We are now a member of the customs border with leaving the single market and the customs group. We are no longer under the jurisdiction of the union. Whatever is decided, peace must be preserved. European Court of Justice. We will not ‘take account When we have all the details of that proposed deal—in of or have regard to’ the decisions of the ECJ. We will the autumn I hope, but I am not really expecting only have ‘due regard’ to its rulings, and we will no that—then, and only then, should Parliament consider longer submit to free movement of persons. We will whether the result of the negotiations is so far away now only accept free movement of workers”. from what was promised that the people should be Turning from the world’s cameras to speak directly consulted again. But this time we must give the people to the British people, she says: “I have carried out the a clear choice between the terms on which we should task you gave me. I have delivered the will of the remain and leave so that they know exactly what the British people. I now await your further instructions”. terms are in both cases. As she turns to enter No. 10, some reporters shout out: To conclude, this is, as the noble and learned Lord, “Prime Minister,Prime Minister! Nothing has changed!”. Lord Judge, pointed out, an essential Bill—there is But their voices are drowned out by the spontaneous chaoswithoutit.ButthisHousecanimproveitsubstantially. burst into singing of the citizens outside the gates of That will take time, which is running out for the No. 10 as the sound reverberates along Whitehall: Government, the country and me, so I will sit down. “For she’s a jolly good fellow and so say all of us!”. She is voted one of the greatest Prime Ministers of 6.55 pm all time, and a grateful nation erects a bronze statue of Lord Saatchi (Con): My Lords, it is an honour to her in Parliament Square. follow the noble Lord. I would like to dedicate my In the years that followed, the Prime Minister provided speech, if this is within the conventions of your Lordships’ the British people, free at last, with an inspiring vision House, to another Member of the House—the right and sense of purpose. She saw that the most effective reverend Prelate the Bishop of Leeds—for exactly the political statement of our time was, “I have a dream”. same reason as the noble Lord, Lord O’Donnell, She had a dream too, and she made it come true: an mentioned him. The right reverend Prelate reminded “end state” where Britain takes its rightful place as the us that there is more to life than trade deals and that national leader of Europe. How did she do it? Every human beings possess the power of imagination, and day she noted the statue of General Slim opposite can conjure up in their minds a vision of a better Downing Street and remembered his lesson about the world and a better life. power of words to change the world. As he said: So far in this debate, we have certainly been presented “You cannot win a war unless your troops believe they are with many nightmare scenarios. So now, as we approach fighting for a noble object”. the end, perhaps I may paint your Lordships a picture, She carefully studied how Germany had risen from if you will allow me, of the dream scenario: a happy ashes to ascendancy, dust to dominance, by changing ending to the story. just one word: “democracy”. As so many noble Lords 1647 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1648 know much better than I, in the original European comment on when he winds up. There is concern that Coal and Steel Community made up of six countries, the Bill as drafted fails to fully assign a legal status to democracy meant one country, one vote. German retained EU law. Will he also address the concern that diplomats brilliantly changed it to one citizen, one Ministers are due to determine legal status only on a vote, which is much more democratic. The moves that case-by-case basis, considering the fundamental nature followed—reunification of the biggest population in of such a power? Europe; the treaty of Nice, so that Germany outvoted The Bill seeks also not to retain the Charter of Britain for the first time; and the treaty of Lisbon, so Fundamental Rights. Will the Minister address concerns that the majority required to change EU law was that this may lead to a rather scattered landscape of reduced—were three simple steps to effective control rights, resulting in less protection for people? I am sure of Europe. The Prime Minister thought, “They did it. that all of these matters can be resolved, but I ask him Why can’t we?”. She saw the opportunity. Britain to consider them. would soon have the largest working-age population in Europe, and according to the most recent estimates, Much has been said about Clause 11 on devolution, faster economic growth than Germany for the next and I urge the Government to rethink it. Can the 20 years. Minister also assure your Lordships that the House of Lords will play an equal role in scrutinising any secondary So the Prime Minister called the Foreign Secretary legislation, as I believe was promised by the Leader of to No. 10 and asked to see the Foreign Office plan for the House of Lords in evidence to the Constitution Britain as the leading nation of Europe. She was told, Committee on 13 December? Might that even be written “Britain at the head of Europe? It’s impossible. Pie in into the Bill? the sky. Head in the clouds. We must keep our feet on the ground”. But she thought that that would not do. This is an exciting time for our nation. No longer She resolved to mobilise the English language and will we be shackled by the EU single market or burdened send it into battle; we know that. The Prime Minister by paying huge sums into the EU budget. Britain will understood that this would be the work of a generation become a truly global trading nation, making trade or even two generations, as it was for Germany, but agreements all around the world. On this very day the she recognised that the movie we are in—further to the Prime Minister is in China with many of our businessmen, choices made by the noble Lord, Lord Lisvane—is not hoping to make trade agreements with the enormous “The Great Escape”. The film needs a better title—“The Chinese trading bloc. Promised Land”—and a new script written by a fresh Much has also been said about the nature of this team of screenwriters. The Prime Minister held fast to country post Brexit, and this is where I will refer to the her dream because she knew that a map of the world Commonwealth family. My father came to Britain which does not include Utopia is not worth looking at. from Jamaica in the 1940s to do perhaps the most noble job known to mankind—to play cricket for 7.02 pm Warwickshire. Although he was born and raised in Lord Taylor of Warwick (Non-Afl): My Lords, on Jamaica, he felt that he was coming home because he this very day, 31 January, in 1606, Guy Fawkes was was part of the Commonwealth family.Let us remember executed following the failed Gunpowder Plot—but it that that family comprises 52 nations with one-third is vital that this Bill does not also expire. The Bill must of the world’s population. It has an immensely rich be passed into law to allow Her Majesty’s Government and enduring history and culture, with English as a to implement the will of the people in the referendum common language, as well as great admiration for our result and to respect the judgment of the Supreme sovereign. The timing of the Bill is excellent since Court. Britain is due to host the next Commonwealth Heads of Government Meeting in just a few weeks’ time. A recent Thomson Reuters report identified 52,741 pieces of legislation that have been passed in Parliament This Bill is not a leap into the dark. When fear since 1990, manyof which came from Europe.Transferring knocks at the door, we must answer it with faith. It is European law into British law is the quickest way to illuminating that throughout the Bible there is a clear ensure continuity, and of course that is the purpose theme of one empire after another eventually overreaching of the Bill. So I see the rationale for the so-called itself and gradually collapsing. In the Old Testament Henry VIII clauses allowing Ministers to streamline it was the Egyptian empire, followed by the Assyrian the procedures, but I put it to the Minister that these empire, the Babylonian empire and finally the Persian powers should be limited to technical issues only and empire. They all collapsed. In the New Testament were that there should be a sunset clause. But in so doing, the powerful rulers of the Roman empire such as surely we have to learn from the past. Such a complexity Nero—but they all eventually fell. So the Bible and of constitutional laws may not have served Britain history demonstrate how national sovereignty always well. Let us not forget that, after 40 days and 40 nights proves more durable than the politics of imposed on Mount Sinai, in the presence of Almighty God, the empire. prophetMosesfinallyemergedwithonly10commandments For 10 years I was vice-president of the British to help humanity. If God had given Moses 52,741 laws, Board of Film Classification. Currently there is a I suspect that he would have needed more than two British film which will probably win several Oscars for tablets. the British film industry. It is called “The Darkest I spent some years as a barrister in what was known Hour” and it is about the Second World War. We are as “Rumpole of the Bailey’s chambers”. I stress that I privileged to be part of the most important season in am in favour of this Bill and I want it to pass, but there British history since 1945. As we engage with our are some matters that I would ask the Minister to European counterparts, we must revive the winning 1649 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1650

[LORD TAYLOR OF WARWICK] legislature to Executive, and on that I very much agree spirit of Sir Winston Churchill. In the film, Churchill with the warning from the noble and learned Lord, declares that, “You cannot reason with a tiger when your Lord Judge. For me, the lightbulb moment was spotting head is in its mouth”. Clause 9(2), where Ministers take the power to change—by delegated regulation—this Act. So we spend the next 7.08 pm three months working day and night to improve the Bill and when it is on the statute book the Minister, Lord Kerr of Kinlochard (CB): My Lords, it is hard with a flick of his pen, can cross out our work. That to follow the noble Lord, Lord Saatchi, and it is hard cannot be right. In the words of the Constitution to follow Warwickshire cricket. I was going to say that Committee, it gives Ministers, the speech which has made the most impact on me so “far greater latitude than is constitutionally acceptable”. far in the debate was that of the noble Lord, Lord Secondly, as a Scotsman I of course listened very Bridges, yesterday. He spoke of the need for us to carefully to the noble and learned Lords, Lord Hope, decide what kind of country we want, because only Lord Wallace of Tankerness and Lord Mackay, and it when we know what we want to be will we know what seems to me that they are right: there is no need to relationship with Europe is right for us. Not for the attack and overturn the central principle of the devolution first time, he called on the Government to be, settlement—and there will be a huge price to be paid if “honest with themselves and the public about the choices we face. we do. I do not understand the sphinx-like disdain for Then, the Prime Minister and her Cabinet must make those choices … to govern is to choose. As we face the biggest challenge consultation with the devolved Administrations. It is this country has faced since the Second World War, keeping every exactly a year since the Prime Minister last met her option open is no longer an option”.—[Official Report, 30/1/18; devolved Administration colleagues in the JMC, the col. 1423.] top-level committee set up for consultation with the I could not agree more. I could not put it better. I devolved Administrations—a whole year. That cannot am very uneasy about the silence of the sphinx. I am be right. I very much hope that the Minister will bring very uneasy when I see free-market wolves in cuddly forward an agreed amendment to Clause 11 very soon, sheep’s clothing promising undiminished farm support. but we may need to nudge the process a bit and perhaps I am very uneasy about fierce critics of the working also make sure that the Belfast principles, as set out in time regulations promising that there will be no change the Northern Ireland Act 1998, cannot be undercut by to labour rights, employment rights, social rights and powers taken in this Bill. equality rights, and that we do not need to worry Thirdly, like the noble Lord, Lord Hannay, I have about giving Ministers the power to make changes to difficulty understanding the link between this Bill and such rights by statutory instrument. the stand-still transition period that, it seems, we want. More generally, the Government need to come The 27 reminded us in the mandate that they agreed clean on whether taking back control means a bonfire on Monday that in the transition period the ECJ’s of controls, and whether we are going to change our jurisdiction will rule. The Prime Minister acknowledged socioeconomic model, as in autumn 2015 the Chancellor that in her Florence speech. Why, therefore, does the said we might have to do. We need to know for two Bill strike out the ECJ’s jurisdiction? We will only have reasons. First, the Bill asks us to give them the matches to put it back again if we get a transition period. to light the bonfire if they want to. Secondly, our Lastly, I am uneasy that Ministers may try to duck partners across the Channel need to know. They will out of the meaningful vote that we have been promised decide what access we can have to their markets depending when the outcome of the negotiations is clear. Suppose on how far we will stick to the model of how their that there is no deal. Suppose also that by then we economies—most western European economies—work. have a different Prime Minister—the sphinx sits on It will not do any longer just to say that we want shifting sands. Suppose that we have a Prime Minister something deep, special, unique and bespoke: we have who believes that Brussels should whistle for the money. to define what it is. It is not enough to say—as we said, Suppose that the negotiations break down. Will we get far too soon—what we do not want. Mrs Merkel is the meaningful vote to ensure that Parliament cannot quite right: we have now to say what we do want. be bypassed? This Bill has to guarantee that in all When the 27 say that the British red lines mean that circumstances the moment of truth will definitely the British can have no more than a “Canadian” deal, come—and come at a time when we still have the we must stop putting our fingers in our ears and options of extending withdrawal negotiations, taking chanting “la la la—I can’t hear you”. It is their call: back the Article 50 notification letter or consulting the they will say what deal we will get. There are red lines, country about doing so. but it is their call. Getting a Cabinet to agree and stick 7.15 pm to a line is always difficult, but that is the job. A sphinx- like silence will not do any more. Baroness McIntosh of Pickering (Con): My Lords, I am delighted to follow the noble Lord, as I seem to Of course we must pass this Bill, for all the reasons have done for the past 20 years. I refer to my current mentioned by so many noble Lords. If in the end we interests on the register. leave the EU, EU law has to be instantly repatriated to ensure legal continuity. We must, therefore, pass the In 1972, during Second Reading on the then European Bill, and I am confident that we will improve it. Communities Bill in the other place, Sir Geoffrey I would like to see improvements in four areas. Rippon said: “I believe that we shall walk tall into Europe on 1st January 1973. The first is the area that the noble Lord, Lord We shall take our rightful place in the counsels of Europe. We Lisvane, among others, drew attention to: I do not see shall compete and we shall contribute”.—[Official Report, Commons, any need for such a massive transfer of power from 13/7/72; col. 1984.] 1651 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1652

In leaving the European Union, we shall undoubtedly for my noble friends Lord Astor and Lord Ridley, and diminish our standing and influence in the world. It fervent readers of the Daily Mail: those of us who was Europe that brought me into politics. I was born wish to improve the Bill stand prepared to perform of a Danish mother and Scottish father. Denmark was our statutory and parliamentary duty of making it occupied during the Second World War,severely restricting better. the freedoms and liberty my mother could enjoy while We are faced with inconvenient truths: the UK growing up with occupying troops and tanks on the simply cannot replicate the free trade agreements with streets of Copenhagen. the 70-plus countries with which the EU has a formal I fervently believe that bringing our trading relations trade agreement, including Commonwealth countries. closer together across Europe, as our membership of Although there are countries such as Vietnam outside the European Union has facilitated, has made the these arrangements, in effect the potential market is prospect of future conflicts in Europe much less likely. very small compared to the existing single market With the collapse of the Berlin Wall—I was there in of 505 million consumers. It surprises me that the November 1989, a day I shall remember all my life—we Government took the key tools in their negotiating have seen an influx of countries and peoples from the pack off the table even before negotiations began—namely, former Soviet bloc, strengthening our defence against our membership of the single market and customs a potential foe. That same year, 1973, when we joined union. Considering the remaining options available, the European Union, I left Harrogate Ladies’ College applying to join the European Free Trade Association to embark on my legal studies at Edinburgh University. would seem the next best thing to membership of the I had high hopes of following a career in the European EU; and leaving with no deal, on World Trade Community as it then was, and I did. I undertook a Organization most-favoured nation terms, the worst. “stage”—an internship—in the Commission. I worked Being in EFTA would minimise the potential economic for the Conservatives in the European Parliament. I damage, solve the question of the Irish border and practised European law and I then became a Member maintain our sovereignty. Were we to be outside the of the European Parliament. single market and EFTA, a dispute resolution mechanism My overwhelming feeling in debating this Bill is one must be agreed in regard to cross-border issues involving of sadness at the fact that many of the opportunities British goods entering the EU post Brexit. that I had in my 20s and 30s will not be available to In terms of agriculture and the environment, I future generations—namely, the right to live, study believe that the common agricultural policy has made and work in another EU country. the EU supply chain more sustainable and kept prices I will set out why, in my view, the Bill is defective. In stable. Since the referendum and the collapse in the transposing into UK law those instruments such as value of the pound, food prices have risen sharply. The regulations and decisions—instruments other than EU higher environmental standards have turned Britain directives—the Bill seeks to introduce a new category from the dirty man of Europe to the clean and green of retained direct EU law, whose status seems far from land that we are. clear, as was put most eloquently by the noble and I am proud that our history, cultures and destinies learned Lord, Lord Judge, and other noble Lords. The are shared with our European partners. The question provisions of the Bill lack clarity and legal certainty, today is what exactly the nature of our deep and and if I was a law student today I would find it special relationship, going forward, will be and whether impossible to understand its provisions. They do not that will be in the best interests of this place, of our entirely reflect the well-established principles of direct country, of the British people, of British business and, effect and direct applicability, and the relationship especially, of the younger generation. between the supremacy of EU law and retained EU law is simply not clear. 7.22 pm The Bill is further flawed by the huge power given to the Executive to pass secondary legislation through Lord Hunt of Chesterton (Lab): I welcome this so-called Henry VIII clauses. While there is agreement Second Reading to consider the continuing role of the across Parliament that new procedures are needed to UK Parliament in the future of Europe although, as ensure proper scrutiny—to hold the Government to the noble Lord, Lord Kerr,said, the devolved parliaments account—I query whether new committees are required are also a vital element. Having visited and collaborated or this is best dealt with by beefed-up versions of the with friends and scientific colleagues in countries all existing committees on delegated legislation. over the world, it became ever clearer to me that as the If there is one unique contribution I can bring to EU has welcomed new member countries and led the the debate today, it is this: I argue—and have long world in living standards, science and culture, it has argued in the other place and here—that there should become the greatest union of countries and confederations be the opportunity to amend the content of those in the world—and that our small country off the draft statutory instruments which come before both north-west of Europe has been incredibly fortunate to Houses, not just to vote for or against them. This is be a leading country in that Union, as well as being a especially relevant as the Explanatory Memorandum member of the looser network of the Commonwealth. to the Bill states that these laws, once transposed, can I suppose that all organisations need reviewing then be further revised and amended by Parliament from time to time so, in the light of this general post Brexit. But this would be a new power: a power to philosophy,it was perhaps reasonable for our Parliament, amend not just the title but the actual content of each led by Prime Minister Cameron, to announce in 2013 and every statutory instrument. Clauses 2 to 9 are a review of the terms of the UK’s membership of the therefore ripe for amendment. I have a word of caution EU. This led to the in/out referendum in 2016 that 1653 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1654

[LORD HUNT OF CHESTERTON] As we look forward to the next decade, Parliament resulted in 52% of voters recommending that the UK and the young voters who will then become the majority should leave the EU. But extraordinarily, following the will realise that there will be progressive disadvantages decision in the referendum, our Parliament did not in the UK’s quasi-independence from the EU. Indeed, then insist on moving a Bill to establish the legal as my noble friend Lord Mandelson put it, plans may framework and government policies for leaving the emerge eventually for a second opportunity for UK EU. It took the Supreme Court to tell Parliament to voters to express their opinions about the possibility take charge of every aspect of leaving the EU and of the UK rejoining the EU politically, which might establishing procedures for the UK to work with the be an element in the interesting play that we heard of EU. Most importantly,these procedures must be relevant from the noble Lord, Lord Saatchi. in helping people to move and work across Europe. The woolly and uncertain government statements 7.28 pm about wishing to work with the EU in future have not Baroness Falkner of Margravine (LD): My Lords, it been enough so now,as other noble Lords have explained, is a pleasure to follow so many excellent speeches on we have hundreds of legal measures in this Bill. The this historic Bill, but it is a Bill that I nevertheless Government apparently want to avoid these procedures wholeheartedly wish was not before us. But it is, and it and just control the leaving process by autocratic is our duty to play our part in ensuring that withdrawal Henry VIII measures, as other noble Lords have from the EU is as orderly as possible. emphasised. There is now much to be done to establish myriad measures to ensure that Brexit operates smoothly I agree with most noble Lords that the Bill is and openly for the thousands of organisations and flawed. I have reservations about several aspects, including millions of people who will be affected. But it has on the scope of ministerial power and the appropriateness become progressively clear that the terms and conditions of empowering the Executive to such a degree,particularly for the UK to function in relation to the EU will be in the light of devolution. Moreover,I share some concerns quite onerous. about the level of parliamentary scrutiny needed, and at what level. Speaking as chair of this House’s EU Sub- As a scientist, I have had many conversations during Committee on Financial Affairs, I will seek clarification the past year with researchers, industry and government from the Government as to how they envisage different agencies.Wehave already seen the departure of important levels of EU law and regulatory guidance being EU science centres that are in the UK and the movement implemented in the UK. In this area, detailed of leading scientists away from the UK. Many European parliamentary scrutiny may or may not be appropriate, projects will certainly go ahead with significant UK depending on the level of decision we seek to transpose participation, including Euratom, which will be debated in our quest for regulatory alignment—something that in the House of Lords next month. But the UK may we should surely seek to do where it is appropriate. no longer take the leading position and UK industry However, it is the amendment proposed by my may lose contracts in these new arrangements. noble friend Lord Adonis that I wish to address. I Other centres which the UK takes a lead on include think of him as my noble friend because some 25 years the European Space Agency and the European Centre ago, I delivered leaflets on his behalf when he was a for Medium-range Weather Forecasts—a major centre candidate for the Liberal Democrats, so we go back a here at Reading which, if I may say so, leads to such long time. I have enormous respect for him as a extraordinarily improved weather forecasts that in the historian, a senior Member of this House and a thought United States they now talk about the European weather. leader on many of the thorniest issues that our country There is currently also funding from the European faces. I admire the passion with which he has engaged Commission for these organisations. The tricky and his campaign for a third referendum, but I wonder to important question, which is not well understood, is what extent he has reflected on developments on the whether the UK will make special financial contributions other side of the English Channel. in place of the funding that comes from the European For the EU, while Brexit may have been a distraction, Commission. If not, we will find that many of the it is continuing a business-as-usual model, which is guiding strategies and actions of these European agencies why we have seen such unity. Its priority is rightly to in which we are involved will no longer have a UK secure the financial stability of the eurozone, and lead. Norway and Switzerland see this at present; they work is continuing apace in that regard. The completion participate but do not have the leadership role. of the eurozone project, the banking union and the The facilities in the UK may also not continue, capital markets union has significant implications for which would greatly affect UK science, technology the UK’s financial services sector. Moreover, ambitions and universities. Perhaps even more important is how for an EU Finance Minister and a eurozone monetary high-tech manufacturing industry will grow when it fund, and Mr Macron’s vision for a separate eurozone no longer receives development funding from the parliamentary caucus, present different challenges for European Commission. These companies are well our sovereignty and clout in the EU were we to remain. distributed across the UK, more so perhaps than The EU budget is also undergoing change. The financial organisations, and many of them work with High Level Group on Own Resources, led by Mr Mario UK universities. Some of them are already discussing Monti,towhommycommitteespokeduringhisdeliberations, moving some of their operations on to the continent. has now reported. Among its recommendations are This is extremely serious for many important industrial new ways to raise direct EU resources, such as a: communities in the UK. The companies will do this to “Reformed VAT-own resource … corporate income tax-based participate in the most exciting future projects with own resource, financial transaction tax or other financial activities’ EU funding. tax”. 1655 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1656

It suggested measures relating to the energy union, 7.35 pm and to environment, climate and transport policies, Lord Thomas of Cwmgiedd (CB): My Lords, many including a CO2 levy, proceeds from the European emission trade system, and an electricity tax, a motor have spoken in the context of the tripartite relationship fuel levy and other measures. I set this scene just to between the Executive, Parliament and the judiciary, remind ourselves that the EU we think we might stay of the balance to be struck in this Bill between Parliament in will not be the EU we were in prior to 23 June 2016. and the Executive, and, of course, of the flawed nature Crucially, the important decisions on the budget, the of this Bill. I wish to speak solely in relation to the future of rebates, the future of the eurozone and position of the judiciary as affected by this Bill and of changes to parliamentary accountability are taking maintaining its independence. Noble Lords may at place now and will do so in the period before mid- once think that it is quite unnecessary for me to speak 2019, when a new Commission and Parliament will about the independence of the judiciary in this context, commence. Therefore, leaving aside the question of but it has become clear, not only from what has whether we should have another referendum, to which happened in this country but also from what has I am opposed, I argue that the opportunity for one is happened elsewhere, that the independence of the now behind us. judiciary depends to a material extent on the legislature and the Executive doing what they can to keep the If I correctly understand the amendment of the judges out of political decisions and the judges, of noble Lord, Lord Adonis, he seeks a referendum on course, doing what they can to keep themselves out of the terms of the withdrawal agreement. I have two such decisions. principal thoughts regarding that, as other noble Lords have also supported the view that we need a The present draft of Clause 6 requires the judges referendum on the withdrawal agreement. The first is within the United Kingdom to make decisions that that, if the withdrawal agreement is negotiated by could well be, or certainly be seen to be, political in October or November this year—as we have been told nature. It is essential that Clause 6 be amended to that by Mr David Davis—the referendum presumably would effect. This is not the time to develop the arguments, be after that option is agreed or rejected by both for in any event, they are set out in the excellent—or Houses of Parliament, or rejected or agreed by the perhaps I should say, to echo the words of the noble Commons, which has supremacy. In effect, therefore, and learned Lord, Lord Goldsmith—brilliant report the decision to hold a referendum will be legislated of the Constitution Committee. There is a solution for in late 2018 or early 2019, with a referendum suggested; it needs discussion, and I hope that by the impossible till late spring 2019. The Electoral Commission time the Bill comes back to this House, there is a requires six months from a decision till polling day. On properly thought-through amendment to that clause. that time line, the proposed referendum will be held Although it is Clause 6 that directly affects the after we have legally left, or are in transition under a position of the judiciary in our constitution, it is different status, and we would have to reapply to join important also to appreciate the potential effects on the EU. the judiciary and its independence of the present If so, even if the noble Lord, Lord Adonis, then clause on devolution—Clause 11—and of Clauses 7 secures a yes vote—and I am pleased to see him back to 9. Those clauses have been referred to by my noble in his place now—we will almost certainly re-enter on and learned friend Lord Hope as the Cromwellian different terms than those that pertained before 29 March, clauses. I prefer the title Henry VIII. That is not 2016, when we triggered Article 50. The UK rebate, merely because of loyalty to my predecessor, my noble the Schengen opt-out, the 35 or so JHA opt-outs and and learned friend Lord Judge, who has done so much opt-ins, and, most importantly, the hard-fought under that name to describe the real problems in the renegotiation will all be off the table. The only other extensive use of those clauses and the dilution of basis for us to remain in during the referendum period parliamentary sovereignty that has resulted, but also in 2020 would be if we did not withdraw and negotiated because it was Henry VIII who abolished the separate an extension to the Article 50 period, as permissible laws of Wales. under Article 50. This would prevent the UK from It is clear from legal developments in the past striking any trade deals during the extended period, decades that recourse to the courts will be used in any which is material. attempt to seek resolution of issues that have not been While this is a possibility, we would only prolong subject to decision by Parliament. That is a good uncertainty, and the change in Europe that I have enough reason in itself for decisions to be taken here. described in 2019 would surely mean that there would There is, as is well known, a ready route to challenge be no final decision on the UK’s status for a further legislative powers exercised by Ministers, but probably two, three or four years. All this while, businesses will not so well appreciated, to review issues in the devolution have made decisions to relocate, investment will have legislation which are not contained in well-thought- fallen further and legal uncertainty will have been through—I underline those words—and clear provisions. prolonged even further. The result would be a prolonged The Welsh devolution cases are a pointer to the problems period of drip-drip decisions being made by businesses that can occur. and institutions, which could only achieve a very I have sympathy for the Government and their diminished result for the UK, whether it were in or highly professional legal service when they have to out. On that basis, I have come to the conclusion that bring about changes to a vast volume of legislation we have to do the best that we can with withdrawal. I faced with the pressure of time and the uncertainty will expend my energy in making it a success to caused by the absence of agreement with the European whatever extent I can, starting with this Bill. Union. In those circumstances, I very much hope that 1657 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1658

[LORD THOMAS OF CWMGIEDD] They believed in centripetal policies drawing powers this House and the Government will be prepared to into the centre. They were not very concerned about explore alternatives in the legislative process, which the periphery.Analysis of the British referendum shows have been mentioned by many noble Lords, and the that the periphery of the forgotten, the overlooked use of expert bodies, such as the Law Commission, to and the not-asked voted against the centralising powers assist by their advice in the process of scrutiny, which of Europe. is difficult, and avoid unintended consequences. When, as Home Secretary, I met the other Ministers It is the position of the judiciary that I wish to of Justice, we were supposed to form a committee to emphasise. The noble Lord, Lord Kakkar, forcefully be a check on the Commission because the Commission pointed out that these issues are a matter of real was always there. The trouble with the other Ministers concern to the judiciary as they affect it. So far, the was that they kept disappearing. Some were promoted, judiciary has been one of the institutions that has some were sacked and some were arrested. They were remained largely unaffected by the issues relating to not about and they were not an effective control. They Brexit. However, the events of November 2016 arising would always chide me on not being a good European. out of the first decision in the Article 50 case, in which They were the last lot to do that because the Italian I participated, demonstrated the importance of the Minister went to jail for a huge financial fraud in role of the judiciary in our constitution and social Naples, the Irish Minister of Justice was sacked for order, the relative fragility of its independence and the fiddling his election expenses and the Spanish Minister necessity of Parliament doing, as it did then, all it can for Justice won the booby prize as he went to jail for to safeguard the independence and position of the murder. judiciary. I voted leave for political reasons. I found that our There is a further factor which until recently may institutions, such as the House of Commons, the have been overlooked: the significant contribution our courts and the judicial system, were much closer to the legal system makes to our economic prosperity. We British electorate than their European counterparts. should not ignore the fact that the events of November When qualified majority voting was introduced, our 2016 were publicised worldwide and commented on. I position at the table in negotiation was reduced very therefore hope that Parliament will do what it can so significantly. We lost far more votes than we won, so that the judiciary’s independence and reputation are our position was diminished. not put in issue again. The decision to leave has been taken and I think it will not be changed. Jeremy Corbyn will not support a 7.41 pm second referendum, and he is wise not to do that. I Lord Baker of Dorking (Con): My Lords, I remember would not. I believe it is quite possible that in a second the enthusiasm with which I voted for the 1972 Act referendum the leave vote would go up, not down, and how I campaigned vigorously in the 1976 referendum because the way we have been treated by Europe over on the Common Market. In the succeeding 40 years I the past 18 months has been a pretty humiliating moved the other way and I voted leave. I remember the experience. Mr Barnier acts rather like a headmaster Third Reading of the 1972 Bill. The debate was mainly with a reluctant pupil. Parliamentary democracy should about Commonwealth trade, not the great issues of now prevail over plebiscitary democracy. Those who Europe and all the rest of it. It was about Australian still want to be in the European Union, or to rejoin it if lamb and New Zealand butter. There were two Back- we leave, would be joining a very different body because Benchers in that debate who forecast that if we were to already the centralising power has increased. Macron, join the Common Market there would be a substantial Schulz and the former Italian Prime Minister want and irreversible transfer of sovereignty and power. one fiscal policy and one Fiscal Minister, and if a They were Michael Foot and Enoch Powell. Over the Fiscal Minister is appointed one day, our Chancellor following 30 years, their forecasts were correct: there of the Exchequer would have to bow to him. was a substantial transfer of sovereignty. Before I sit down, I shall say something about the Later in my political career I was involved in one political situation and the position of the Prime Minister. such case. I was Home Secretary during the Maastricht I cannot recall any Prime Minister being subject to negotiations and I was very keen to ensure that the such vicious attacks, scornful dismissals, offensive responsibility of the Home Office for immigration, vituperation and personally wounding comments on prisons and the criminal justice system should remain an almost daily basis. She is held in contempt by many under British control. I had assurances from Douglas people. She is not alone in that. Our last three Prime Hurd and John Major, given in great good faith, that Ministers—Blair, Brown and Cameron—are also held that would happen. They had agreed with Europe that in contempt, some of them in utter contempt. It seems those issues should be put into a separate pillar. There to go with the job. The Prime Minister has been were going to be three pillars. One would cover all the written off a hundred times yet could she form a issues of the Home Office and they would be reserved Government? Yes. Could she get a Queen’s Speech? to nation states. The night before the treaty was signed, Yes. Could she get Article 50 through? Yes. Could she I was rung up again and that pledge was reconfirmed. survive the Tory party conference? Yes. Could she In all fairness, the European authority did set up a restart the stalled negotiations before Christmas? Yes. separate pillar, but it disappeared within 15 years. One These are not inconsiderable achievements. They are should not be surprised at that because the very powerful quite considerable. Faced with this avalanche of disdain, institutions that the European Community had many people would have resigned, and she had an easy established, particularly the Commission, were not exit through her illness, but she has stayed on the really interested in dispersing power from the centre. bridge, I think from a sense of duty—that may be 1659 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1660 something to do with being a vicar’s daughter—to We have a role, alongside the House of Commons, to ensure that the electoral decision in the referendum, ensure they do not do that. We see with the Taxation the largest democratic engagement ever in our history, (Cross-border Trade) Bill their attempt to insert any is implemented. discussion of the customs union into that Bill. Here is She is the only Tory leader capable of carrying the sneaky bit: they are then going to try to designate through the Government over the next year. The it a finance Bill, to avoid the scrutiny of this House. Conservatives are split, and the Labour Party is split. Can the Minister reassure us, at the end of this debate, The Liberal Democrats are not split, yet gained no that no such ploy will be used? electoral advantage at all. Perhaps they have missed A flawed process and a flawed negotiation were something. The Prime Minister has set herself one inevitably going to lead to a flawed Bill. We have a very simple target, namely that Britain will leave the duty to amend it, and to deal with some of the issues European Union on 29 March next year, an act that raised by the Select Committee on the Constitution for the last 50 years was not thought possible. That and highlighted by my noble friend Lady Taylor of will be her moment of history, just as Ted Heath’s Bolton, the noble Lord, Lord Beith, and the noble and moment of history was joining the Common Market. learned Lord, Lord Mackay of Clashfern, to name a It will be a major turning point in our history that will few: the relationship between Parliament and government, determine the path that our country will take. I know including the broad range of dangerous delegated that some Conservative Eurosceptic MPs want to have powers the Bill would like to take; Scotland, Northern all the freedoms on 29 March. I say to them, because Ireland and Wales; the customs union and the single we share some agreement, that they should perhaps market; and the issues of disability as highlighted by remember the words of Oliver Goldsmith in the the noble Baroness, Lady Campbell of Surbiton. A 18th century. They should not be, host of other issues have also been raised by noble “too fond of the right to pursue the expedient”. Lords. It is not often in our history that our two Houses Wehave a duty to ensure that the House of Commons have to make a momentous decision, and that decision can revisit some of these issues, which it may not have should be a parliamentary one, not a referendum one. had time or information to fully consider in its It will affect which path exactly is to be taken. We have deliberations. We have always challenged the wisdom been doing this as an institution for more than 700 years. that once a decision is taken by the democratically We have to decide which path to take. We have great elected House of Commons, it is somehow sacrosanct sense of history in this House, and I think we recognise and cannot be changed or challenged. We are the that the European Union is a form of empire. In the place that says, “We know you took a decision, and we great roll call of history, it is the empires that collapse understand the democratic legitimacy of taking it, but and disappear, and it is the nation states that survive. we believe you should reflect on it and think again”. Some of that wisdom may be needed by the House of 7.50 pm Commons when it comes to the referendum. It should be confident that a referendum is not sacred and Lord Alli (Lab): My Lords, when the Leader of the sacrosanct but can be changed, and that people can be House opened this debate, she implied that this was a asked to think again. The public are not stupid: they narrow and technical Bill and made it sound like she understand that events change and that it may be thought the House was in danger of overestimating necessary to consult them again if, and only if, the the importance of the Bill. However, as we have the circumstances warrant it. largest number of speakers in a Second Reading debate in our history—169 speakers so far and 20 more to The question is: who decides what circumstances come—I suggest to the noble Baroness that we in this warrant it? For me, that is a matter for the House of House believe this is one of the most important Bills Commons and not for your Lordships’ House. What the House will consider for some time. we have to ensure is that this Bill does not block the House of Commons from exercising its judgment on Almost every speaker I have listened to has been whether that is necessary or not. We have to build united in agreeing that this Bill is badly put together flexibility into the Bill for the House of Commons, to and will need substantial amendment. Despite the allow it to do its job. plaudits of the noble Lord, Lord Baker, for the Prime Minister, I believe the Prime Minister and the Cabinet I end with a quote, from 19 November 2012, in a should hold their heads in shame for delivering up a speech about Europe: Bill in such bad shape and for trying to intimidate this “If a democracy cannot change its mind, it ceases to be a House and the other place out of amending it. It is democracy”. pathetic to do so. The author and speaker of those words was David Davis, Secretary of State for Exiting the European I am not without sympathy for the Government’s Union. I hope he still believes them to be true, but Front Bench in this House. Those on it will have to put then again I respect his right to change his mind. forward arguments in Committee that almost no one, including them, believes credible. They will be asked to get powers that no one in their right minds would 7.56 pm give to individuals and will be asked to attack anyone Lord Trevethin and Oaksey (CB): My Lords, it is a who wants answers on what the Government intend to pleasure to follow the noble Lord. As he said, more or do post Brexit as potential saboteurs of the Bill. less everyone agrees that the Bill in its present state The Government have continually tried to bypass requires substantial improvement. The objective must Parliament and parliamentary scrutiny in this process. be maximum clarity, to take a phrase from the 1661 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1662

[LORD TREVETHIN AND OAKSEY] At this point, it began to dawn on UK litigants and Constitution Committee’s very powerful report, and their lawyers that the charter could be invoked. It is a minimum legal uncertainty. I think that is the right pleasing irony that one of the first litigants who took phrase, as legal certainty is just not achievable here. the road to Luxembourg was David Davis, who was UK judges will be grappling with issues thrown up by then on the Back Benches. The point of reciting this this Bill and related legislation for many years. Your history is that throughout the period from 1998 to Lordships’ duty, it seems to me, is to make their job around summer 2016, so far as I can tell, almost no manageable. Personal views about the merits or demerits one said, “Look, hang on—the convention isn’t working. of Brexit seem to be largely irrelevant to the performance The Human Rights Act isn’t working. We need more. of that duty. We need the charter”. No one was saying that. What It is a bit late in the day for legal stuff, so I has changed? I am not sure. apologise, but I want to say something about the The charter differs from the convention in two Charter of Fundamental Rights, which I think is important general respects. First, its scope is limited likely to take up a bit of time as the Bill goes through by Article 51 to the actions of member states, the House. On this point, the Government are probably “when they are implementing Union law”. right to exclude the charter from the body of EU law The precise scope and meaning of that phrase is which is to pass into post-Brexit UK law. I agree with debatable. In any event, no such limitation applies to what has been said about that by the noble and convention rights, so the scope of the convention is learned Lord, Lord Brown of Eaton-under-Heywood, broader than that of the charter. On the other hand, and the noble Baroness, Lady Deech, but will add a the powers of the domestic court pursuant to the few observations of my own. charter go well beyond any power conferred by the The Government seek to justify the exclusion of the Human Rights Act 1998 in relation to the convention. charter on the ground that it adds nothing to existing If legislation is incompatible with charter rights, the rights, and therefore its exclusion is of no consequence. court must disapply it. If legislation is incompatible This is most unpersuasive, as the noble and learned with convention rights—which will often be identical—the Lord, Lord Goldsmith, has said, because it invites the court cannot disapply it but may grant a declaration response, “Why bother to exclude it then?”. It is also of incompatibility. incorrect as a matter of law. The retention of the These distinctions can have odd results. In the charter as part of UK law would, in fact, make some Benkharbouche case decided a few months ago by the difference. I recognise that it would provide litigants Supreme Court, employees at the Sudanese and Libyan with a few additional arguments, but it would also embassies made various claims which were, on the lead to considerable legal uncertainty. In particular, it face of things, barred by the State Immunity Act. The would lead to unnecessary complications regarding its Supreme Court held that the Act was incompatible interaction with the Convention for the Protection of with both Article 6 of the convention and Article 47 of Human Rights and Fundamental Freedoms, which, the charter—which resembles the former but is not as the House knows, is a very similar foundational quite the same. Some of the claims were EU claims document. within the charter, some were not, but they were all The convention was drafted in 1949. As is well known, claims about working conditions and pay.The Supreme a large part of it was brought into domestic law by the Court found that the EU claims within the charter Human Rights Act 1998. Some parts were left out, could proceed since the Act had to be disapplied, but advisedly. That Act was very carefully drafted, under the latter could not. It was a strange and, noble Lords no pressure of time—unlike this Bill—and struck a may think, unprincipled outcome. balance between the protection of human rights and Is there harmonious co-operation between the ECHR the constitutional principle of the sovereignty of in Strasbourg and the CJEU in Luxembourg? One Parliament. It achieved that by means of the Section 3 might have thought that there would be, given that obligation to construe legislation in a way that is Article 6(3) of the Lisbon treaty provides that the EU compatible with human rights, and by means of the should itself accede to the convention—and if there Section 4 power to make a declaration that primary were such harmonious co-operation, the potential for legislation is incompatible with a convention right. It conflict and legal uncertainty would be much reduced. does not give the court a power to strike down legislation But there is not. In December 2014, I think to general on the basis of such incompatibility. Almost every surprise, the CJEU issued an opinion which explained practising lawyer and judge would agree that the Human why accession to the convention by the EU was not Rights Act and the convention behind it have worked permissible. It is an interesting document that can be very well. The scope of the Section 3 presumption has summarised, not unfairly,in one sentence: “The continent been defined in the case law, and Governments have is not big enough for two supreme courts”—delivered respected declarations of incompatibility. in the manner of the film that the noble Lord, Lord The charter was drawn up in 2001, but had no legal Lisvane, took his maiden aunts to. force until the Lisbon treaty of 2009, which provided The problematic nature of the relationship between the that it, charter and the convention—and between Luxembourg “shall have the same legal value as the Treaties”. and Strasbourg—is illustrated by the proceedings I The UK and Poland negotiated what they thought mentioned brought by Mr Davis in relation to data was an opt-out—at least that is what the politicians retention legislation. Mr Davis relied on Article 8 of said—but in December 2011, the CJEU said that in the charter and the Digital Rights Ireland case in the fact it was a document whose purpose was to remind CJEU. In that case, the Divisional Court and the the British and the Poles that they had opted in. Court of Appeal expressed perplexity and concern 1663 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1664 that the CJEU had not dealt with a competing and To support my argument, I pray in aid the recent report diverging sequence of cases in the Strasbourg court. of our Delegated Powers and Regulatory Reform So the Court of Appeal made a reference to the CJEU Committee. Summary point 5 states: and said, “Help us, please—tell us what you mean. Do “In the absence of a convincing explanation to the contrary, you mean to expand the charter beyond the convention?”. the affirmative procedure should apply to Henry VIII powers The CJEU’s response, which came about a year ago, under clauses 7 to 9 and 17 that allow Acts of Parliament to be was imperious. It said, in what is again not an entirely amended or repealed”. unfair paraphrase: “The convention is not an EU text. In summary point 6, the report continues: The charter can reach parts which other conventions “Ministers should not have an unfettered choice to apply the cannot, so the UK court’s request for clarification is negative or the affirmative procedure for statutory instruments inadmissible. We are telling you nothing more”. under those clauses”. Allowing human rights law to flow from two separate As an alternative, the committee proposed a sifting and, frankly, warring sources is a recipe for legal mechanism and that all instruments should be laid in chaos. The convention works well, and the common draft before Parliament, and that either the affirmative law’s protection of human rights is alive and kicking, or negative procedure should be proposed. It recommends as the Supreme Court’s judgment in the UNISON that where the Minister proposes an affirmative procedure case showed. A proliferation of foundational texts is it should apply, but suggests a different process where unnecessary and damaging. We do not have time to the Minister proposes a negative procedure. It states: waste in Committee, and for my part, I think the “a parliamentary committee has 10 sitting days in which to charter can safely be left in Luxembourg. recommend the affirmative procedure instead. If no such recommendation is made, the negative procedure applies”. 8.04 pm Finally, the committee believes: Lord Northbrook (Con): My Lords, I respect and “Where the committee recommends the affirmative procedure, support the principle of the Bill as a key piece of it applies unless the relevant House rejects the committee’s recommendation within a further period of five sitting days”. legislation which will repeal the European Communities Act 1972 but, at the same time, copy EU laws on to the Continuing in the same area, I highlight two more UK statute book to ensure a smooth transition. At changes recommended by our Delegated Powers this stage, I am not going to rehearse the problems Committee. Summary point 3 says: that many other noble Lords have identified with the “Regulations under clause 14 stipulating exit day(s) should be Henry VIII powers, which are equivalent to the Statute subject to the affirmative procedure”. of Proclamations of 1539, contained in Clauses 7 to 9 At the moment, exit days means such days as a Minister and Clause 17. Nor am I going to go into detail about of the Crown shall appoint. This would be solely in my concerns with Clause 11 and the effect of the Bill the power of the Minister. Thus anyone passing this on the devolved Administrations. I will only point Bill must be prepared to be a spectator to what the out—as many other noble Lords have done—the criticism transitional measures will be and how they will operate. in the cross-party Constitution Committee’s recent This is not satisfactory. As an aside, my personal report on these clauses, as well as the Hansard Society’s preference would be to stay in the single market and concerns. customs union at least for the transitional period. I will instead focus on the Bill’s proposed use of The committee also criticises Schedule 4 with regard legislation via statutory instruments, as has already to taxation. The report says: been analysed by the noble and learned Lord, Lord “All regulations made under Schedule 4 which introduce or Judge. As many noble Lords have stated, between increase fees should be subject to the affirmative procedure”. 800 and 1,200 separate items will be made in this way, I agree. according to MPs in the other place. I welcome the I do not have the time to go into the Delegated sifting committee that has been proposed by the other Powers Committee’s concerns on sub-delegation powers place, but it needs to go further. At the moment, the leading to tertiary legislation, as set out in the UCL Bill’s proposed way for parliamentary discussion of and Bingham Centre briefing on the Bill. these items will be the automatic negative procedure. In this House, such items are put on the Order Paper Like others, I ask the Minister whether he will put and there are 40 days to pray against them—if this down amendments to satisfy the concerns of our happens, they are then discussed on the Floor of the Constitution and Delegated Powers committees. I feel House. Of course, if noble Lords do not read the that these are really necessary to make this a better House’s business papers in detail every day, they will Bill. Could he also answer my and many other noble be blissfully unaware that secondary legislation is sailing Lords’ concerns on the devolved Administrations issue? through by default—especially on an Order Paper such as today’s, on which noble Lords may not have 8.10 pm got as far as page 18. No negative procedure statutory Lord Cavendish of Furness (Con): My Lords, it is a instruments have been turned down in the other place pleasure to follow my noble friend. I am consoled in for 38 years, and only 17 have been turned down the thought that I am not alone in living a life of since 1950 according to the noble and learned Lord, blissful ignorance. Although it may seem like a century Lord Judge. ago, I refer back to the beginning of this debate and If, on the other hand, the proposed statutory thank and congratulate my noble friend the Leader of instruments are to be discussed by way of an affirmative the House for and on her clear, authoritative and procedure, they will automatically be taken on the altogether excellent speech. Again, it is a distant memory, Floor of the House. This is much more satisfactory. but I thought that the speech of the noble Baroness 1665 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1666

[LORD CAVENDISH OF FURNESS] As has been pointed out, there is something surreal the Leader of the Opposition had some very interesting about remainers from all parts of the House affecting and constructive ideas as to how the Bill could be to be concerned about parliamentary scrutiny, when improved, and the House is indebted to her for the you consider that membership of the EU has, over the tone and content of her opening speech. last 40 years, eroded to vanishing point such scrutiny. Having listened to many hours of debate and read That has been raised by others. Since they want to Hansard extensively, I am in no doubt that I am in a enshrine in perpetuity this grotesque state of affairs, minority in your Lordships’ House in believing that their virtue-signalling pretence at outrage rings pretty we should leave the European Union, and even more hollow. in a minority in thinking that no deal is better than a Time does not allow me to talk of trade beyond bad deal. In fact, I find myself saddened, not that saying I have worked in the SME sector for most of some speakers disagree with me, but that they appear my working life, and my personal interests appear in to think that a bad deal is acceptable. I do not see it the register. Brexit will indeed mean change, but who that way. is afraid of that? It has been a feature of my life every day for the last 40 years or so. Of course, fat corporatists Speakers have fallen into distinct groups, and I and their CBI mouthpiece tell you otherwise, because belong to the smallest. The second group is represented they want to go on buying favours from Brussels so as by the majority of the party opposite, and others, who to disadvantage their smaller competitors. accept that a Bill is needed and whose opposition will What has attracted rather little attention is the fact have regard to the constitution and conventions of that, as the noble Lord, Lord Butler, said yesterday, your Lordships’ House. If I am right about this, we the EU institutions appear to have no appetite for have a lot to be grateful for. Then there are the Liberal change. This is what seems to embed our position. Democrats, whose was the only party at the last They continue on the fateful road towards a federal election that wanted by one means or another to European state; they want to hobble the City, which reverse the referendum—and look what happened to by my calculation produces revenues enough to pay their vote. They are quite unabashed, rather admirably for the NHS. The EU has become a brutal and amoral so, I suppose, by their numbers being so grossly protectionist fortress, devoid of humanity, and inflicting disproportionate to their representation in the country. pain and suffering on the poorest, not only in the They lecture the rest of us on the merits of democracy developing world but also among our own EU citizens. and then threaten to defy the will of the people, manifesto commitments and votes in the other place. I Again to draw attention to the noble Lord, Lord sometimes wonder whether they place less value on Adonis, we can all find lovely quotes from Burke, I your Lordships’ House than many of the rest of us. think for almost any occasion, but perhaps he might like this one: Finally,there is the group that appears to be gathering “Free trade is not based on utility but on justice”. under the flag of the noble Lord, Lord Adonis, which The EU wants armies and harmonised taxation regimes, quite simply wants to ignore the referendum result, as and it wants oversight of national budgets—there is I see it, and sabotage the Brexit process. I have a copy very little that it does not want to control. It is simply of the noble Lord’s resignation letter here. It is a very beyond me to understand what is attractive about this long-winded, petulant and self-serving document. I construct, which is doomed anyway through its total keep a copy on my desktop so that I can show it to my want of accountability. grandchildren as a masterclass as to how not to resign and keep some vestige of dignity.He characterises those The right reverend Prelate the Bishop of Leeds who voted for Brexit as “populist” and undergoing a, quite early in the debate asked, “what sort of Britain, or indeed Europe, do we want to “nationalist spasm worthy of Donald Trump”. inhabit?”.[Official Report, 30/1/18; col. 1386.] So he joins fellow aspiring wreckers who insult us leavers His close proximity to me should not make him worry, as being stupid, ignorant, bigoted, racist or simply, as but I am not confident that he will be entirely happy the mealy mouthed Mr Tony Blair would have it, with my answer to his question. He is right to point having “imperfect knowledge”. The noble Lord describes out that the question is not solely about economic the Bill rather mysteriously as the, issues. Of course no one voted to be poorer, and no “worst legislation in my lifetime”, one will be. Having campaigned daily for a Brexit outcome, it was perfectly clear to me that people put and promises to oppose it relentlessly, and so he begins other things ahead of economic concerns. People to do today—or did yesterday. understood, in ways that the metropolitan elite did Perhaps he will be joined by the noble Lord, Lord not, and will not give them credit for, that this country’s Kerr, who last week foretold gleefully that Britain historic embracing of the rule of law is the foundation could be made to come to heel. Apparently, he enjoyed of freedom. the prospect of our country being humiliated so much Since the dawn of time, far earlier than the Magna that he actually said it twice. His tone today was, Carta, in these soggy islands—places of such beauty happily, rather more moderate. Having spoken to other and enduring romance—it was established that we retired mandarins, and I know a few, I am left wondering would be governed by consent and not by diktat. The whether it is legacy that these people worry about. If settlement has at intervals been challenged by the so, this is a dangerous trend. Surely all of us who have Norman invasion, by the Stuarts and, dare I say it, by seen policies to which we have devoted time and effort families like my own, who from time to time got out of be changed have to live with that without throwing the control and had to be reined in. These same people I toys out of the bath. met on the campaign trail also understood why their 1667 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1668 parents and grandparents suffered and gave their lives so My second point relates to devolution. While I am that we, their successors, could enjoy the golden benefits sure that there are faults on both sides—I think the of the rule of law and breathe the sweet air of freedom. Scottish Government need to be a bit more practical I have inherited their passion and, in consequence, ask and positive in their approach to this issue, as do the for this Bill to be given safe passage. UK Government—I cannot believe the situation that the UK Government have got themselves into over devolved responsibilities.The initial devolution settlement 8.17 pm was based not just on 20 years of debate, national Lord McConnell of Glenscorrodale (Lab): My Lords, consensus and a settled will, but on a rigorous application if the Whips arranged the speaking order for tonight’s of political and intellectual thought to make sure that debate in order that I might be provoked into responding the settlement created in 1999 would stand the test of to some of the more outlandish comments of the time. Through all the ups and downs of politics in the noble Lord, Lord Cavendish, I am afraid that I shall last 18 or 19 years, the legal responsibilities of the disappoint them and try to stick to my script. I might devolved Administrations have very rarely been subject be in a minority in your Lordships’ House in that I to a successful challenge. That rigour,applied particularly was not old enough to vote in the 1970s European by my noble and learned friend Lord Irvine but also referendum, so I cannot start my speech by saying by other colleagues in the Cabinet back in 1997 and how I voted back then—but I can start by saying that 1998, has stood the test of time. To try to overturn my whole adult life I have always believed strongly in that in any way at the moment is either really incompetent the European Union and its predecessors. I would or very sleekit indeed. The Government need to respond probably go further than most Members of your to this, not by springing amendments on your Lordships’ Lordships’ House by saying that I believe strongly in House at the last minute, but through proper, open the concept of shared sovereignty at the European and transparent discussion that raises the common level. I believe it is consistent with a belief in shared frameworks and perhaps, at times, common legislation sovereignty between the four nations of the United required at the UK level in some of these areas, but Kingdom. I do not see any discrepancy between a which is firm and clear that, where responsibilities belief that that works in the UK and a belief that it were devolved in 1999 or subsequently,they will continue works in the European Union as well. to be devolved after 2019. I voted remain. I was dismayed by the campaign It is a matter of real regret that the Government that promoted that cause—but I did vote remain. have not used this opportunity to try to refresh or However, I accept the result, and it would be very wrong regenerate the Government of the United Kingdom. if this unelected House chose to try in any way to obstruct If we are to take back control—however much some the will of the people as expressed in June 2016. I shall of us regret the decision and the implications for our not support moves designed to do that. interdependent world of this move back towards the nation state—we should do so on the basis that we I also wish we had more opportunity now—a year reinvigorate our democracy at the same time. There is from exit day—for discussion of the immediate an opportunity here to change the relationship between implications of the Brexit vote. This is not the time or the UK Government and the three devolved Governments the place to debate the future of, for example, our of the United Kingdom. It is not yet too late to take development aid relationship with the European that opportunity, either in the next 12 months or in the Union, or the nature of those trading relationships two-year transition period, for a combination of common that should, in my view, be based as much on fair trade frameworks, with Ministers sharing decision-making as free trade. But it is the time and place to discuss this at a UK level between the devolved Governments and Bill. I will highlight two points of particular concern the UK Government on an equal, respectful basis in to me. certain areas, and for the further devolution of powers First, there have been many fabulous contributions to allow the people of Scotland, Wales and Northern from noble Lords across the House over these two Ireland to have full control where that is appropriate. days about fundamental rights, highlighting in particular The opportunity still exists and the Government should employment rights and so on, but I raise the issue of take it. children’s rights. If the issue of consistency of rights and consistency of application of European law in 8.24 pm UK law is not handled correctly, if we do not couple that with an appropriate approach to the consistency Baroness Bowles of Berkhamsted (LD): My Lords, of the justice mechanisms that exist across Europe just as several noble Lords have mentioned, and as the now to protect children, and if we do not take an Constitution Committee report said, lessons can be appropriate approach in the forthcoming immigration learned from the Sanctions and Anti-Money Laundering Bill to child migrants, it will be the most vulnerable Bill. That is a sectoral Brexit Bill, not saving legislation children who fall through the net that is created. We and not aimed at policy change. It was explained, need to be very aware of that. There are many interests variously, as a technical bill, as dealing with deficiencies that will be promoted in your Lordships’ House in the and as not changing policy—just the same vocabulary coming weeks—employment rights and other rights used to describe the withdrawal Bill and operations mentioned in the charter—but issues around children’s within it. rights could lead to the worst impact falling on the I will elaborate more fully on some of the lessons. most vulnerable. We need to be very careful to protect First, all creation of new criminal offences by regulation the consistency and application of rights in relation to was taken out, not just those over the threshold defined children in our forthcoming debates. as “relevant” in the withdrawal Bill, which means 1669 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1670

[BARONESS BOWLES OF BERKHAMSTED] providing policy guidance for tertiary legislation. Where sentences greater than two years. When voting on this will the implementation and policy guidance come constitutional point for the second time, there was a from in future against which to measure secondary massive vote to remove from the anti-money laundering and tertiary legislation? Will this Parliament have any part, where sentences were indeed limited to two years, role, or will the UK be run by delegation and deference— any new criminal offences. If anything, the case is delegation to regulators and deference to the same clearer for the withdrawal Bill: why should “saving” regulators sitting in international regulatory bodies? legislation create any new offences? Will this Parliament be given comparable time and Secondly, in the anti-money laundering part of that opportunity for consultation and scrutiny of regulatory Bill, it was frightening to compare the unlimited, proposals? I say to the noble Lord opposite that I policy-free, mechanistic list of delegated powers with should like an opportunity to do here one fraction of the far richer policy context and predictability of the what I did in the European Parliament. EU money laundering directive that it replaced as the source legislation. Until amended, this proposed 8.31 pm primary legislation gave absolutely no substantive Lord Harries of Pentregarth (CB): Before coming foundation against which to test future secondary to the Bill itself, I must say something very briefly regulation. It was without constraints or policy now, about where I come from in relation to it. empowerment for total policy change by regulation later. I call that a constitutional-level policy change. The overriding reality of our time is globalisation—the We have a similar wolf in sheep’s clothing prowling ability not only to move goods and manufacturing parts of the withdrawal Bill. around the world and communicate across the globe in an instant, but to shift money at the press of a Thirdly, with its amendments, the anti-money button. This is a world in which multinational corporations laundering part is much improved. Nevertheless,businesses have unprecedented leverage and an international financial are in a more uncertain place because the Bill is no elite has extraordinary influence. In the past, a sovereign longer set in the richer EU format. Uncertainty is not state could to some extent control the power of capital a good direction of travel for our home-made laws and in the interests of the country as a whole. In a globalised we should not be inured to it—we can do something world it is simply not possible for one nation on its about it. own to do this. It is only through close co-operation The good news is that the withdrawal Bill aims, so with other countries and building shared institutions we are told, to save policy context—the idea is right. that we can build the kind of society we all want. The bad news is that the legal status is confused; it In his thoughtful and sombre speech, the noble Lord, certainly cannot be case-by-case at ministerial convenience. Lord Hill of Oareford, said: There are “panic button” clauses giving delegated powers without objective definition and stretchyschedules “Europe is already moving in directions that we have traditionally resisted”.—[Official Report, 30/1/18; col. 1389.] that expand, sometimes for ever, what you thought had been limited in clauses. The Explanatory Notes In particular, he mentioned more screening of overseas say the law is not deficient merely because a Minister investments. For some of us, that is one of the reasons considers that EU law was flawed. Such clarification why, in a globalised world, the European Union is of must surely be in the Bill; so must objective qualification such crucial importance. However, the Bill is about of the much overused “appropriate”—that is definitely much more than that. As the noble Lord, Lord Wallace an alpha wolf, not a sheep. of Saltaire, stressed, what about defence and security? What about the essential co-operation necessary in the Businesses have been promised policy continuity. struggle against terrorism, international crime and So, in considering amendments around status, legal cyberattacks? For many of us, this issue is about a clarity and interpretation, my test is that, however great deal more than markets. The European Union is legislation is saved, it should not mean sacrificing not a guarantee of close co-operation in these areas, policy. Policy continuity means keeping all relevant but it makes it much more likely. When will we hear factors to assist interpretation or challenge; keeping about these issues and how they will be achieved if we them after modification, because that has been stated leave the Union? as being only to clean up language; and keeping them for EU-derived legislation, such as directives, under Closely linked with the concept of co-operation is Clause 2. Just as Ministers quote rules and precedents the notion of drawing on a larger perspective and a to justify their words in legislation, similar happens wider wisdom. This country is not the sole repository when negotiating directives. A great deal is contained of wisdom. Here, I turn to the Bill before us, and in in recitals, which are relevant for interpretation by the particular to the fact that in the transfer of European EU court and regulatory authorities, even though they law into UK law there is no mention of the Charter of are not transposed and their content is needed. Fundamental Rights. The Government have repeated their claim that all the rights safeguarded by the In that context, my final point is to ask how EU charter are in fact contained in individual laws and constraints on delegation of power will be retained. that it is not therefore necessary to include it. However, My goodness, we need to get some constraints from the Joint Committee on Human Rights has done a somewhere. This has relevance to financial services, detailed clause-by-clause analysis of the issue and where the European supervisory authorities are bound shown that this is simply not the case. It points out: by the Meroni principle. Will the FCA and the PRA “Firstly, some of the rights will inevitably be lost as they be so bound when taking over—and if not, why not? derive from membership of the EU … Secondly, Charter rights At present, it is the EU that implements international which are based wholly or largely on ‘general principles of EU standards, such as Basel rules, via co-decision and law’ will no longer confer an enforceable right. This means a loss 1671 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1672 of enforceable rights such as Article 1 (human dignity) … Thirdly, As John Longworth, writing in the paper on Monday, a number of the Charter rights derive from the European Convention said, either the Treasury economic experts got their on Human Rights (ECHR) which are incorporated into domestic model hopelessly wrong or they were deliberately lying. law by virtue of the Human Rights Act … Whilst these rights will continue to exist and confer an enforceable right on individuals, I thought at the time that it was just sloppy modelling the standing is narrower and the remedies are weaker under the for them to be so wrong by as much as 400%. Now it HRA compared to the Charter … Fourthly, some of the Charter seems the Treasury is at it again with the leaked rights may be reflected in domestic statutes, but may not be as Project Fear forecasts. I admire its astonishing accuracy. comprehensive as the Charter … for example, the rights to data It forecasts a 0.3% reduction in growth every year for protection in the Data Protection Bill … Fifthly, some of the the next 15 years. That is amazingly accurate considering Charter rights that are based on EU treaties may be retained by virtue of Clause 4 of the Bill if they are directly effective, but it is that over the last 12 months it has been 400% out. not always clear whether these provisions are directly effective. Producing that dodgy dossier once may have been a The Government itself appears unsure … Sixthly, some of the mistake but its latest leaked analysis by the same Charter rights are based wholly or in part on provisions of the discredited economists is clearly a deliberate attempt ECHR or other international treaties that have not been incorporated to foist more ludicrous forecasts on the British public. into domestic law, such as the UN Convention on the Rights of I find it a very sad day when reports by Her Majesty’s the Child”. Treasury have less credibility than the Zinoviev letter. Liberty and Amnesty International agree with this We have this Bill before us because the electorate analysis. They point out, for example, an issue that is wanted back control of our money, laws and trade of interest to some of us in your Lordships’ House: policy, and they knew that by voting leave we would that Article 25, on the rights of the elderly and the leave the single market and the customs union. When right of older people to lead a life of dignity and the Bill goes into Committee, I understand that there independence and participate in social and cultural will be amendments seeking to ensure that no British life, will be lost. This right is unique and has no Government can diverge from EU rules and regulations, equivalent under the ECHR or anyjusticiable international and that is what I want to concentrate on. I believe treaty or convention to which the UK is a party. that is foolish and it shows little faith in our Parliament, I was a Member of your Lordships’ House when which will once again be free to properly hold the the ECHR was incorporated into UK law. I cannot Government to account. The whole point of Brexit is help wondering if the opposition to this that came to give the UK Government and Parliament the right from some quarters at that time has become refocused to make our own laws and diverge from EU bureaucracy, to exclude the Charter of Fundamental Rights from bad law, Luddite regulations and the concept of a this transfer of European Law. I believe that we need socialist Europe, which is making us more and more it. It acts as a benchmark—an interpretive principle in uncompetitive in comparison to the Far East and the the light of which human rights as a whole have to be USA. I do not want us stuck at the bottom of the seen and understood. Without it, as the JCR has regulatory scrapheap making analogue laws for a digital shown, we are losing rights and remedies that we now world. We are a great country and we need the freedom enjoy.As the right honourable Kenneth Clarke questioned to make better regulations. in the other place, why has the charter been singled I ask noble Lords to cast their minds back to out, Monday of this week, when we debated the 25-year … “uniquely among all other law”, environment plan. What an inspiring document that not to be saved in domestic law? He asked, is—inspiring because it shows how much better our “what evil it has done, what danger they think we are being land and marine environment will be when we do not protected from by its repeal”.—[Official Report, Commons, 16/1/18; have EU law destroying our fishing stocks, damaging col. 759.] our wildlife and ruining our soil. We can get rid of the That question has yet to be answered. wicked CAP, which the EU still boasts is a marvellous achievement. We can ban any plastic products we like 8.36 pm without having to wait for EU approval. We can Lord Blencathra (Con): My Lords, it is a privilege restore our fish stocks. Wecan impose proper biosecurity to follow the noble and right reverend Lord with his regimes to stop our plants and trees being decimated customary thoughtful speech. I must admit that I by imported diseases we are currently unable to stop agreed with some of it, but not as much as I agreed because of the free movement of goods. And of prime with the speeches of the noble Lords, Lord Grocott importance, we can impose our own much higher and Lord Trevethin and Oaksey,and the noble Baroness, animal welfare standards to replace the cruelty of live Lady Deech. animal exports, which the EU happily endorses. Some noble Lords have suggested that people voted We will have the freedom to set our own VAT rates to leave the EU but did not vote to leave the customs on any products we choose. German car companies union or the single market. I am sorry but that is paid out billions to US consumers within months of nonsense. The government-funded propaganda leaflet, the diesel car scandal breaking. Not one single EU the Prime Minister, the Chancellor, the whole remain consumer has had a penny compensation because of machine and the global elite stressed over and over the cosy, corrupt cartel between EU policymakers and again that a vote to leave would mean leaving the German car firms. I would hope that an independent single market and customs union, with all the dire UK could impose our own air quality standards and consequences that would entail. Of course, the Treasury ban dangerous polluting vehicles. in its May 2016 dodgy dossier also said that there On financial regulations, there are those who say would be an immediate loss of 500,000 jobs and the that we must not do a Singapore and have a race to economy would crash into recession. the bottom. I agree entirely: we must not race to the 1673 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1674

[LORD BLENCATHRA] will be respected and the charter of fundamental bottom, but Singapore has a GDP per capita of $53,000 human rights retained as part of UK law; and that and ours is $40,000. The cost of living in Singapore is membership of the single market and customs union 14% cheaper than London. It is the third in the world will continue. for life expectancy and we are the 20th. If that is the I come now to the negotiations, because we cannot bottom, I want to race to it as soon as possible. look at the Bill without looking at the negotiations. Singapore has risen to be one of the most successful The Minister ducked this at Oral Questions today. He economies in the world, with an exceptionally high has another chance. Whatever else he does in responding quality of life, because its people embrace free trade to this debate, I hope he will spell out what the and cutting regulation. Government are seeking in negotiations with the EU. When we read yesterday about the head of the What a sorry state those negotiations are in. The noble London Philharmonic Orchestra, who is a remain Lord, Lord Higgins, put his finger on it yesterday: supporter, complaining about onerous EU red tape how can you possibly negotiate effectively with the EU and looking for opportunities outside Europe, we got when you will not declare what you want? The noble a snapshot in that tiny area of the dead hand of EU Lord, Lord Baker,valiantly defended the Prime Minister regulation holding back not just our productive industries this evening, but it was she who laid down the red lines but our creative ones also. right at the beginning that have so constrained the I have just rushed through a few examples, but in negotiation. Subsequently she has given us no vision every sector of our economic and public life we are and made no attempt to reach out to the 48% who did being constrained by poor, bad EU regulation. As the not vote to leave. Not one effort has she made to speak noble Lord, Lord Hill of Oareford, said yesterday, we to the nation as a whole; she has given us no strategy will need the freedom to move very quickly to regulate and precious little hope. Whatever her virtues, she is for technological change, which the Luddite EU cannot simply not leading at a time when the country is crying do. We will need the freedom to regulate quickly on out for leadership and to be brought together. artificial intelligence, genetic modification, innovative medicines and treatments to name but three. We need As the chairman of the Commons Brexit Select better regulation. We need British regulation. We need Committee put it this week, after 19 months no one is this withdrawal Bill, with some technical amendments, any the wiser as to what the Government want from passed as soon as possible. the Brexit negotiations. The Cabinet has not reviewed, evaluated or decided on the desired outcome. The gap 8.42 pm between Mr Hammond’s aim of a modest change in the UK’s relationship with the EU and Mr Rees-Mogg’s Lord Hunt of Kings Heath (Lab): My Lords, that assertion that close association with the EU is unacceptable was quite a contribution from the noble Lord. I must is utterly unbridgeable. say, when I hear Singapore promoted as the vision that we should aim for, I think it gives the lie to where we That of course brings me to the amendment of my are going if this Government continue: a country noble friend Lord Adonis. I know some noble Lords where deregulation abounds and protections are limited. feel it is premature. My noble friend Lady Smith, the That is where some noble Lords in your Lordships’ Leader of the Opposition, was clear on that point, and Chamber wish to take us. we heard from the noble Baroness, Lady Falkner, I will make three points but, first, I must comment about some practical issues concerned with the second on the remarkable speech by the right reverend Prelate referendum. If, however, the terms of the deal in the the Bishop of Leeds. He challenged us to show good end are seen by many as unacceptable, surely we ways of disagreeing well. I think, on the whole, we should not close the prospect of the public’s having a have met that challenge. final say. My first point concerns the appropriateness of this If the rush to trade agreements with third countries House’s making changes to the Bill before us. The is detrimental to our environmental health and food noble Baroness the Leader of the House described it protection, if we cannot achieve a frictionless border as a technical measure, but, of course, it is much more for Northern Ireland satisfactorily outside the customs than that. Why else would she implicitly warn the union or the single market, if the economy looks very House not to thwart the will of the people expressed risky in terms of our trade with the EU in the future, through the referendum? Why else would the noble or the dawning reality finally breaks that there is no Lord, Lord Dobbs, suggest we are on the brink of middle way—or, as the noble Lord, Lord Hill, said disaster, repeating the error made by your Lordships’ yesterday, that you cannot have your cake and eat House more than 100 years ago in rejecting Lloyd it—it seems to me, though I am no expert, that it is George’sbudget? Even the noble Lord, Lord Strathclyde, becoming clearer and clearer that there we face only felt the need to warn us off using our extensive powers. two options. One is a hard Brexit, on WTO rules, with I am mindful of convention. I know of no threat to high tariffs, huge economic risks and a desperate the progress of this Bill. Of course it will pass but, attempt to agree free trade agreements with the US equally, we have every right to make substantive changes and other powerful countries, where, as a middle-ranking to the Bill and to send it back to the Commons to economic power, in the words of the noble Lord, Lord allow them to think again. I hope we do. I hope we will Tugendhat, we will be subject to their extraterritorial ensure a meaningful role for Parliament at the end of reach. Alternatively, we could have some kind of close the negotiations; that we will make sure that delegated alignment with the EU, but on EU terms and rules, powers cannot weaken environmental, consumer, health with little or no influence on those rules, which may and work protections; that the devolution settlement well change over time to the UK’s detriment. Neither 1675 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1676 of those options appears very palatable to me. I certainly they were not quite old enough to vote in the 1975 say to the noble Lord, Lord Blencathra: none of that referendum. I do not remember life before we joined was available at the time of the referendum. The noble the Common Market. Therefore I will look back not Lord, Lord Armstrong, said that the referendum was to 1972 or 1975 but just five short years—or at least I full of half-truths, or at least, as he might have said, would have said they were short years, but the noble the protagonists were economical with the truth. But Lord, Lord Bridges of Headley, pointed out that at some point, the consequences will become very clear. Brexit years appear to be rather like dog years. In Surely we as a country deserve some say in the outcome. January 2013, the then Prime Minister gave his Bloomberg The noble Lord, Lord Hague, attempted to frighten speech in which he promised reform, renegotiation us this afternoon with the nightmare of a referendum and a referendum. Why? Was the country divided over merry-go-round. But what if the voting had gone the Europe? Were people clamouring for a referendum? other way in the referendum? Does anyone think that No. Most ordinary citizens were not saying that the passionate Brexiteers would have shut up shop and European Union and membership of it were at the top walked away quietly into the night? As Vernon Bogdanor of their list—but the Back-Bench Conservative MPs argued this week: were. The Prime Minister was throwing a bone to his “If the country is willing to pay the price, a referendum would Back-Benchers; he played a gamble and he lost it. He legitimise Brexit in the only way possible. If it is not, the people offered a referendum and said that he would campaign have a perfect right to change their mind”. heart and soul to remain—the soul comes in again—and, The noble Lord, Lord Strathclyde—I will finish here—said obviously, he lost that gamble. that the Lords is at its best when opposing the Government After the Conservative Party won the election of but on the side of the people. I thought we were doing 2015, perhaps unexpectedly, we ended up with a piece that when we challenged Mr Osborne’s working family of legislation that allowed the referendum. Some Members tax credit cuts, but the noble Lord did not quite take of your Lordships’ House spent day after day, hour that view then. In the end, surely we have to do what is after hour debating the EU Referendum Bill—rather right. To give the public a chance to decide on the fewer than are here talking about the legislation that terms of the deal is not anti-democratic. They should will ensure we have a full statute book on the day we be given that right. leave the EU. One of the things that those of us who were debating 8.50 pm the EU Referendum Bill did was listen to the other Baroness Smith of Newnham (LD): My Lords, we side. Some of us spent so long listening to the leave are coming towards the end of a passionate two days side that we could have stood in for them in a debate of debate, during which the noble Lord, Lord Butler, and been able to rehearse all their arguments for them. suggested that Clause 1 struck a dagger to his soul. I Indeed, if the Prime Minister had listened to the have always thought that the soul is a little more leavers, he would have understood that a piece of intangible, so a dagger to my heart would be somewhere propaganda—as the noble Lord, Lord Blencathra, closer to what I feel—and where the noble Lord, Lord called it—would have gone down extremely badly with Liddle, started off this morning. the leave campaign and that an intervention from a We have heard some hyperbole and passion on both foreign leader would have gone down really badly. But sides of the Chamber. We heard the noble Viscount, the former Prime Minister did not listen, and the cost Lord Ridley, and the noble Lords, Lord Dobbs and of that was a failed referendum and the decision to Lord Cavendish of Furness, suggest that somehow leave the European Union. there may be Members of your Lordships’ House who So this piece of legislation is necessary, and no one are seeking to wreck the Bill or derail it, and who will is going to seek to avoid the legislation entirely—even cause untold damage to your Lordships’ House because if many of us hope that the will of the people could we are not taking the 2016 vote or the elected Chamber lead to an uprising to say, “Give us another referendum, seriously. With the possible exception of the noble let us free ourselves from Brexit”. In the absence of that, Lord, Lord Adonis, who has obviously spoken for we need this piece of legislation—but it needs amending. himself, I do not believe that anyone in your Lordships’ It needs amending in terms of the powers of the House is seeking to wreck this piece of legislation. devolvedAdministrations—thenobleBaronesstheLeader My noble friend Lord Newby in his opening speech of the House said yesterday that power would be yesterday pointed out that, returnedtoLondon,Edinburgh,Cardiff andBelfast—but “we on these Benches have no intention of derailing it or unnecessarily this piece of legislation does not do that. spinning out debate”.—[Official Report, 30/1/18; col. 1382.] If noble Lords think that this is merely a Liberal The vote in 2016 was to leave the European Union. Democrat saying that, I suggest that they look at The EU (Notification of Withdrawal) Act triggered Hansard from last week’s debate in the name of the the legislation necessary for that. This piece of legislation noble Lord, Lord McInnes of Kilwinning, about the is obviously required to ensure that on the day the role of devolved Administrations,in which the noble Lord, United Kingdom leaves the European Union there is a Lord Duncan, said that the legislation for Clause 11 full statute book in place. So far, so good, so necessary. needed amendment. Will the Minister tell us whether But it is not necessarily a good piece of legislation, the Government will bring forward amendments in and we have heard from right across your Lordships’ that area? If not, he can certainly expect several House that perhaps amendment is necessary. amendments to be brought forward—and the same is We also heard Members of your Lordships’ House true of many aspects of the legislation. talking about 1972 and voting passionately to join the In opening the debate a mere 36 hours ago, the Common Market. We heard one Member say that noble Baroness the Leader of the House suggested 1677 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1678

[BARONESS SMITH OF NEWNHAM] that 25 years ago during harvest the telephone rang that the Government were going to be in “listening non-stop at lunchtime, with merchants offering me mode”. The noble Lord, Lord Dykes, suggested earlier £165 a tonne for good-quality, low-nitrogen malting that the noble Lord, Lord Bates, had been one of the barley. Oh to be offered that today, especially when few Conservative Ministers who was popular. Could I one realises what a huge increase in wages and all suggest to the Minister that he and the Government other farm inputs there has been in those 25 years. If Front Bench might court some popularity if they do European Commissioners, officials and staff earned as the noble Baroness the Leader of the House suggested the same today as they did 25 years ago, I am not and listen to members of your Lordships’ House, and altogether sure that we would have a European Union to amendments brought forward in good faith, to at all. I declare an interest as I receive a single farm ensure that the legislation is better and returns power payment, which keeps me roughly sane and solvent. to this sovereign Parliament instead of being an Executive During my time in Belgium I saw at first hand the power grab. There is an opportunity for us to make gravy train that pulls along the Commissioners, who this legislation much better, and I hope that the are unelected and unaccountable to anyone or anything. Government will listen. If they are British, they retire on a nearly six-figure pension and a seat in your Lordships’ House. Currently 8.58 pm we have seven ex-Commissioners. In no way do I blame Lord Palmer (CB): My Lords, when I asked the them, but the system really is crazy. Government Whips’ Office if I could speak late today, If two countries within the United Kingdom cannot it never crossed my mind that I would be followed by agree on a policy, how on earth can 27 countries do four such very distinguished speakers, who have now so? And how can you make laws that affect the Greek filled the Chamber with those waiting to hear their islands and the Outer Hebrides? Surely it is nothing pearls of wisdom—therefore my plan has totally backfired. short of farcical. I believe strongly that the United When I saw such a long and distinguished list of Kingdom ought to have remained within the European speakers, I hesitated to put my name down, but since Union and fought long and hard to disband this then the list has trebled. corrupt and expensive organisation altogether. I am speaking today because I lived and worked in Brussels for a year, and also in Wallonia for three 9.03 pm years. On my return to Scotland, I was appointed the Scottish representative of the European Landowners’ Lord Forsyth of Drumlean (Con): My Lords, that is Organisation, and had the occasion to address the rather like suggesting that one ought to remain inside European Parliament in Strasbourg. There I first met a burning house in the hope of putting out the fire. I my childhood hero, Lord Plumb, when he was president am not sure that I follow the logic of the noble Lord’s of the European Parliament. It is particularly sad that argument. he is now retired from the House, as he would have I am in a minority in this House with my views on made so many useful contributions as we face this Brexit—I have noticed that. I am very proud of the long and complicated Bill. As other noble Lords have way that we in the House of Lords have conducted said, this is probably the most important legislation ourselves over the last 36 hours. I read in the newspapers that any of us have had to debate in our lifetime, that we were going to reverse the decisions of the let alone our children’s, or indeed, in my case, my House of Commons and wreck the Bill but, instead, grandchildren’s lifetimes. we have had a typically incisive debate. We should The fact that Brussels decamps once a month and be particularly proud of the report produced by the goes to Strasbourg is a complete scandal. That decamp Constitution Committee. costs a mere ¤114 million. Nor must it be forgotten I do not know where I come in the speakers list— how much time it takes to close down one operation 194th or something like that—but I thought that I and restart the whole thing, particularly from the needed to find something new to say, so I would like to staffing aspect and their downtime. I have also done tell the House that there is a blue moon tonight. For several stints on what was then European Union Sub- those who do not know what a blue moon is, it is not a Committee D, which in those days covered agriculture reference to the Tory party; it is a reference to the fact and the environment, and I served under three that there has been a full moon twice in the same distinguished chairmen. Wemade several trips to Brussels calendar month—a very rare thing. —although to not much avail, if I am completely honest. When I got an email from the noble Lord, Lord We really are in the most terrible muddle and mess. Adonis—who I hold in very high regard—asking me Every day a different worm pops out of the can and to support an amendment that we should spend four only goes to emphasise the hiatus that the United days on Second Reading, which would mean that we Kingdom is in. The mind really does boggle as to how would now be only halfway through, I thought that things will eventually turn out—and indeed, more perhaps the lunar effect was having an effect upon frighteningly, when. It is the dreadful uncertainty that him. Then, when I read that he wanted to suggest that is terribly worrying to businesses and institutions across we have a second referendum, I just reflected that we the board, as my noble kinsman Lord Hunt of Chesterton voted on this last year in this House and voted with a mentioned in his strong contribution earlier today. majority of more than 200 against that, so I admire his Having been involved in the food business all my courage and his consistency. walking life, I know that food today is incredibly The best speech of many speeches, I think by far, cheap. Forty years ago, 47% of the weekly wage went was the one given from the Cross Benches by the noble on food, but today it is in single figures. I remember and learned Lord, Lord Judge. He set it out absolutely 1679 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1680 clearly, and I feel guilty that I took the advice from the the SNP say that there is a major constitutional crisis Chief Whip and the Leader of the House and went because they might not have the powers over agriculture, through the Lobby the other evening, adding to the fisheries and other matters which are exercised in burden of these Henry VIII clauses. I am impressed Brussels while at the same time arguing vehemently that perhaps this is an opportunity for us to take a that Brussels should continue to exercise those powers. stand while looking at this Bill. But I have to say that It is this Government who are going to create the the noble and learned Lord, Lord Hope of Craighead, opportunity for those powers to be exercised in the disappointed me. He actually compared this Bill to Scottish Parliament. Many noble Lords have made Cromwell. He suggested that it was Cromwellian that speeches saying that the Bill is defective because there we were taking powers away from Parliament in the is no amendment to achieve that purpose. It does not way that Cromwell had done. require an amendment; it requires people to sit down in a constructive manner to talk about the arrangements Lord Blencathra: Thomas Cromwell. that need to be in place in order to ensure that the various nations of the United Kingdom work together. Lord Forsyth of Drumlean: Ah, Thomas Cromwell. What the SNP is doing is once again turning everything into a constitutional crisis in its efforts to break up the United Kingdom. We should not give it any quarter Noble Lords: Oh! on that matter, a point which was made very effectively by my noble friend Lord Dunlop. Lord Forsyth of Drumlean: In which case I withdraw entirely my criticism. But some people drew the parallel This Bill is not a vote to leave or remain, it is not a between taking powers away from Parliament and this vote on future policy, it is not a vote on whether we Bill, whereas actually, if there is a historical parallel, it have a free trade agreement and it is not a vote on is the Restoration, because it is returning powers that the devolution of EU policy. Let us just think of the were given away in the 1972 Act, which this Bill will volume of legislation that would be required if we did repeal. Some 20,000 EU laws were brought into British not have some Henry VIII clauses. I looked at the law over which Parliament had no say whatever. So I Open Europe 2005 estimate of EU law passed since take with a pinch of salt those who suggest that this is 1957 and it amounted to 666,879 pages. I have worked a terrible Bill because it is denying Parliament the out that if Parliament sat for 24 hours a day, seven ability to decide matters. It is returning to Parliament days a week, and we did that for a year, we would be the ability, once this Bill is passed and we are out of able to look at each page for 47 seconds. The practical the European Union, to alter the Bills as we see fit. reality is that we need a Bill of this kind to deliver what the people voted for in the referendum. There are I voted to join the European Community, and in people in the Scottish Parliament who say that they my youth—I have to confess—I was once a member of will refuse legislative consent. I wish them well if they the Young European Federalists— are going to try to go through all that legislation and legislate for themselves. Noble Lords: No! I appreciate that I am running out of time, but leaving aside Thomas Cromwell, perhaps I may give a Lord Forsyth of Drumlean: But I grew out of it. quote from Oliver Cromwell to those in the House We are keen on Edmund Burke quotes. The one I who are so firm in their opposition to responding to would suggest the House might look at is this one: what the people voted for: “The people never gave up their liberties but under some “I beseech you … Think it possible you may be mistaken”. delusion”. I was under a delusion that the Common Market would be a free trade area. Instead, it has turned into a 9.11 pm European Union which has been a tyranny for many of the countries of Europe. The noble Lord looks Lord Reid of Cardowan (Lab): My Lords, I have quizzical. Go to Greece and see what the European never heard the noble Lord, Lord Forsyth, quote Union has done to the people in Greece. someone as left as Cromwell before. In my darkest moments during the referendum I would try to persuade myself that at least one of the benefits was the increasing Lord Newby (LD): Could the noble Lord inform the awareness, familiarity with and affection for their House what proportion of the Greek population wishes European colleagues that would be engendered in the to remain in the European Union? British people through the discussion. I was prompted in that by an incident that took place 25 years earlier Lord Forsyth of Drumlean: I have no idea what the during the 1992 general election, in which I was a proportion is, but if the noble Lord is suggesting that candidate. A week before the election it looked as they have a referendum then I think he has enough on though Labour was going to storm to victory, but in his plate with trying to persuade the British people the days leading up to election day our votes, according that they should have another referendum. This Bill is to the opinion polls, decreased. I was walking through a major first start in a process which is about taking Bellshill in my constituency when a chap came up and back control, making our own laws, and being able to said to me, “John, how do you think it’s going?” I police our own borders and spend our own money. replied, “Well, to be truthful, I’m a bit worried about On the devolution issue,as far as Scotland is concerned, the polls”, at which he said, “Don’t worry about the because I have nothing to say about Wales, I have to Poles. Some of us have lived here all our lives and we’ll say that it is absolutely hilarious to watch members of be voting for you”. 1681 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1682

[LORD REID OF CARDOWAN] Weall know the phrase,“power without responsibility”. I am not sure that the referendum debate had the This Government are contriving to give the United desired effect, but in the midst of it, because of the Kingdom responsibility without power. We will be, as commonplace now of declaring our positions, I have near as you can get in the trade arena, a vassal state. to say that I was anguished at times. I was not decisive This Bill can do nothing about that. But there are on one side or the other. I did not gravitate towards three things that we can do in the Bill that can shape Europhiles or Europhobes. I was what was called a the ability of the House of Commons to do it. The reluctant remainer. I can tell the House that, having first is to make absolutely sure that the House of watched the course of the negotiations, I have changed Commons has the ability not just to reject or accept my opinion. I am no longer reluctant; I am now a very but to shape, compromise, amend and exert the very strong remainer. That is because I believe that we are sovereignty which, it is claimed, we are withdrawing heading towards a disaster—a halfway house. I think from Europe to accomplish. it was my noble friend Lord Hunt who asked earlier Secondly, we must involve the devolved Governments why the Government do not outline their objectives. of the United Kingdom in that decision. Thirdly, we I will tell you why. It is partly because it is a bad must not preclude the chance of going back to the negotiating ploy and partly because it would split the people. I am not asking for a vote. I am not saying that governing party. By renaming some of the objectives that will be necessary. I think it was the noble Baroness, they are hoping—I believe, and we will see it in a year Lady Wheatcroft, who said last night that we have got or two—to get to a position where in all but name we into this mess via a referendum. I do not believe that remain in the customs union and the single market. we can get out of it by precluding the legitimacy of I say in all fraternity to my colleagues on the another referendum. There is no constitutional reason Government Benches: all they have to do is look at the why we should not do it. Those three elements will Irish border question. It has been mentioned several greatly assist the elected Chamber in this Parliament times, for very good reasons and very emotionally. I, to accomplish what is necessary. too, feel a degree of emotion but I want to look at it Those elements, I remind the House, do not undermine very simply. We all know about the border: 300 miles, our parliamentary sovereignty. The first represents the more than 200 crossings, 30,000 people a day crossing exercise of parliamentary sovereignty by enabling the for work alone and 400,000 commercial vehicles a month. Commons; the second will involve all the democratically The Government have said, “We pledge to plug that elected organisations and institutions in this country; gap, but there will be no hard border”. So they contrive and the third, in the last instance, will give the people to do it by two promises. It is the implication of of this country the chance when there are new facts putting them together that the Government Benches and information—new attitudes and explanations—to should examine closely every day. exercise their ultimate sovereignty. That is what this First, they promised in the framework agreement House can do, and if it does it, it will do a service to that there would be “complete regulatory alignment” the country. between Northern Ireland and the Republic of Ireland. Secondly, they publicly responded to the DUP—whom 9.20 pm I do not blame—that there would be complete regulatory alignment between the British mainland and Northern Lord Wigley (PC): My Lords, I am delighted to Ireland. Let us follow the daisy chain of logic in this. It follow two noble Lords from Scotland—the noble does not take a genius: my heavens, Jacob Rees-Mogg Lords, Lord Forsyth and Lord Reid. I warm more to worked it out. If the British mainland is aligned with the comments of the noble Lord, Lord Reid, at the regulations in Northern Ireland, which is aligned with end of his speech, which point a way forward. We have regulations in the Republic of Ireland, which is aligned also heard a number of valuable contributions from with the rest of Europe—Ireland remains an EU Wales in the debate. In this long debate the most member, noble Lords may remember—then Britain poignant moment for me, as for the noble Baroness, must be aligned with the rest of Europe. The only way Lady Smith, was the contribution of the noble Lord, to do that is by remaining in the customs union or in Lord Butler of Brockwell. He said: the single market. You cannot square the circle in any “Clause 1 of the Bill … strikes a dagger to my soul”.—[Official other way. That is why, within 24 hours of making the Report, 30/1/18; col. 1411.] declaration, David Davis went on television to row That touched a nerve for many of us and I often back, saying “We didn’t really mean it”. By the way, wonder, as did the noble Lord, Lord McNally, how I David Davis does not think that anyone in Europe should look into the eyes of my grandchildren when watches British television. He guaranteed that it would they ask, “How could we have allowed the tragedy of be written in blood legally when we get to that discussion. Brexit to occur?”. I mention that because it is symptomatic of all the There is some merit in coming 186th on the list if other discussions that are going on. We will end up in one is a Plaid Cymru Peer. There is just the possibility the worst of all worlds, because there is a difference of a few things not having been said, so perhaps I may between Ireland and Britain in that scenario: Ireland put forward Plaid’s viewpoint on some of these matters. and Europe are making the decisions on the regulations, Weregard Brexit as a political disaster for both Wales and while Northern Ireland and Britain will be taking the United Kingdom but as democrats we accept that them. It is a classic example of the change in our the voters of Wales, for diverse reasons, chose to leave status: everywhere we are free and yet in shackles. We the EU. While there may be a mandate to leave the will be shackled by regulations that we have no power EU, there is no mandate whatever for any specific to manufacture in the first place. new relationship with Europe or the world. So while 1683 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1684

I accept that the Bill should have a Second Reading to which the noble Lord, Lord Hain, spoke so forcefully I reserve judgment on its Third Reading, depending yesterday.If, however,by the Government’s self-imposed on how it is amended between now and then. deadline, negotiations fail to reach a deal and we look I accept the need for continuity legislation to avoid over that horrible cliff edge, the consequences will be uncertainty about the fundamental rights of citizens, devastating. In those circumstances, the people must employees and consumers; and what trade rules apply surely be asked if that is really what they voted for in when Britain leaves the EU.As all existing EU regulations June 2016. The people have the right to change their will automatically carry over on 30 March next year, mind. They should have the final word on any hard the Bill in fact accommodates an ongoing relationship Brexit, by way of a confirmatory referendum. If the with the customs union as a possibility. The Prime voters then rush over that cliff edge, so be it; but if, in Minister,in her Lancaster House and Florence speeches, that new dawn of stark reality, they decide, “No, that’s spelled out four considerations to which several noble not what we want”, then their judgment should be Lords have drawn attention. What was spelled out is, respected and we should step back from this whole first, that nothing is agreed until everything is agreed; sorry saga. secondly, that the Government are hell-bent on quitting I shall not vote against Second Reading, but I shall the EU on 29 March next year, deal or no deal; thirdly, put down amendments to give MPs a chance to think that no deal is better than a bad deal, however defined; again and, even more importantly, as the noble Lord, and the fourth consideration is the irrevocability of Lord Reid, said, to give a hook for the other Chamber Article 50 and a precise exit time,regardless of negotiations to address these issues. I only hope that the other place and whether Parliament has had time to approve any will, by then, have found the courage to make a stand last-minute deal. If there is no deal because of last- and be counted on such momentous decisions. minutecomplications,chaoswouldreign.Wemustconsider the Bill’s robustness for such circumstances. 9.26 pm Other legislation may deal with the transition period Lord Lamont of Lerwick (Con): My Lords, it is a or what practical difficulties might arise, although pleasure to follow the noble Lord, Lord Wigley, as it there are also implications for this Bill. The real dangers always is. It is also a pleasure to follow 185 other arise from giving Ministers Henry VIII-type powers. If speakers; but I do not envy the Minister who has the the Bill goes through in its present form, can we adjust job of summing up the debate. our order-making procedures to allow both Chambers Reference has been made several times to the Third to amend statutory instruments, and have the devolved Reading of the European Communities Bill in 1972. I Administrations agreed how they would handle these have to confess that I, too, was another person who matters? participated in that debate. My noble friend Lord In that context, as the noble Baroness, Lady Finlay Baker referred to the speeches by Michael Foot and of Llandaff, the noble and learned Lord, Lord Morris Enoch Powell. He did not refer to my maiden speech, of Aberavon, and the noble Lord, Lord Thomas of illustrating what the writer Mackworth Praed meant Gresford, observed, Clause 11 is wholly unsatisfactory. when he referred to, Political parties in all three devolved territories have “a maiden speech, stated that it is not acceptable.The Government recognised Which all men praise, but none remember”. this during Commons debates but failed to bring If I have a dagger to my heart, it is the opposite to forward amendments on Report. Why was there the that of the noble Lord, Lord Butler. The dagger to my delay? Clearly, there must be mechanisms to avoid heart is that I strongly supported our joining the market distortion within the UK unitary market. Some European Community at that time. Quite why I and have proposed a statutory UK council of Ministers. If others over subsequent years developed increasing that were to transpire it must be a council of equals, doubts about the European Union is illustrated by the not a consultative fig-leaf. The lack of progress on this Bill before the House, because it incorporates both matter is causing immense frustration in Cardiff, as in visibly and when you dig into the Bill such a huge Edinburgh. It is feared there that the UK Government amount of EU law covering all sorts of things, from are using Brexit to roll back areas of devolved zoos to human rights, beaches, canals, immigration, responsibility. Two weeks ago, the National Assembly extradition, foreign policy mechanisms, policy in north in Cardiff voted unanimously for Wales to have its Africa and overseas aid. At the time of the 1972 own continuity Bill, so that all powers returning from debates, we were assured by the Law Officers that the Brussels which relate to devolved matters will supremacy of EU law was confined “essentially to automatically transfer to devolved competence. Every economic matters”. Those were assurances that were party, including the Conservatives and even UKIP, repeated both by the Prime Minister in 1972—Ted supported that resolution. Heath—and by Harold Wilson in 1975 at the time of Another question is how the final deal will be the other referendum. Some 12,000 pieces of legislation ratified. Both Houses of Parliament and the devolved later, and after Nice, Maastricht, Amsterdam and Assemblies should be required to ratify it. It is essential Lisbon, we can clearly see why many people like that the deal includes some new type of relationship myself think they were mistaken to believe the assurances that allows ongoing trade between the UK and the that we were given. European mainland, particularly for manufacturers We had at the opening of this debate excellent and agricultural products. speeches from the Leader of the Opposition the noble An EEA-type customs union relationship might be Baroness, Lady Smith, from the noble Lord, Lord an acceptable compromise. It would probably resolve Newby, and from the noble and learned Lord, Lord the difficulties in respect of Gibraltar as well as Ireland, Hope. It was particularly excellent that they made it 1685 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1686

[LORD LAMONT OF LERWICK] I regret that this country has been so divided after quite clear that they did not intend to obstruct this Bill this referendum and that some people have been so and that they approached it in a constructive spirit. I upset by the result, but that is no excuse for caricaturing totally agree with all three of them that there is great Brexit as some dangerous extreme nationalism. Brexit need and scope to amend this Bill in certain crucial is not a rejection of the values that we share with areas. Europe, those values being human rights, democracy A lot of concern has been focused on the so-called and the rule of law. Some Liberal Democrats were Henry VIII clauses and the number of statutory cynical and dismissive of the Prime Minister’s call for instruments that will flow from this Bill. This is, of a special deep partnership with the European Union course, the mirror image of the problem that we had and called it just rhetoric, but why should we not have when we joined the European Economic Community outside the framework of the EU co-operation between in 1972. Section 2(2) of the 1972 Act allowed EU law universities and in science and technology just as to have legal effect in the UK by delegated legislation. Switzerland does. Is Switzerland any less European by Some of that delegated legislation was by Order in being outside the European Union? No, it is not. Council and directives that totally bypassed Parliament. Yes, Brexit is about self-government, sovereignty However inadequate the procedures that we are examining and making our own laws through our own Parliament tonight are, they were even more inadequate in 1972. rather than through a Parliament in which we have None the less I do not dispute for one minute that it is only 15% of the share of the votes. Millions of people quite right that this House should seek to strengthen voted for this because they believe in the nation state the safeguards, although some wild things were said in and that the nation state and democracy are two sides the House of Commons such as that this Bill could be of the same coin. That is what people voted for and used to alter the composition of the House of Lords this Bill is necessary to facilitate that. It requires or to postpone the date of the next election. The noble amendment and improvement but it should be given, Lord, Lord Grocott, made a powerful speech. He expeditiously, a Second Reading. referred to the powers of the House of Commons. Statutory instruments are not government by fiat; 9.35 pm they are a parliamentary procedure. If you object to something, turn up and vote against it. As has been Baroness Ludford (LD): My Lords, I was going to said in this debate, it is not easy to see an alternative to start by saying that the image I cannot get out of my the use of statutory instruments. Given the huge volume head from these two days of debate is that of the noble of legislation, it would be quite impractical to incorporate Lords, Lord Cormack and Lord Lamont, sitting in it all by primary legislation. the bath singing “Je ne regrette rien”, but then my noble friend Lord Kirkwood pinched my line—he will These are serious issues, but some of the speeches be hearing from my lawyers, although I cannot afford that we have had, although serious, were not really any of the quality in this House. about the merits of the Bill but criticised the Government’s Like many noble Lords, we on the Lib Dem Benches tactics in the negotiations as a means of getting a hugely regret Brexit. We fully understand the lack of second referendum on to the agenda and into the belief that the noble Lord, Lord Armstrong, expressed debate. The noble Lord, Lord Mandelson, who I see in in the “sunnyuplands”. My noble friend Lady Humphreys his place, was rather flirtatious—rather triangulating— impressed on us forcefully the harm that pulling out of about this question. He said he had been of the the single market and customs union would do to opinion that the referendum ought to be binding but it Wales, as did the noble Lord, Lord Wigley. My noble was no longer axiomatic. As Clemenceau once said to friend Lord Razzall said the same about business Lloyd George after an ambiguous speech: “Pour ou across the UK. So far, so Brexit. Had you asked me contre? Oui ou non?”. We all know which way, in the last spring what was the topic of the inappropriately end, the noble Lord is going to go on that question. named great repeal Bill—which as my noble friend The Opposition present the phrase “the single market”, Lord Newby pointed out early in the debate was which they parrot all the time, as though by finding a neither great nor repealing—I would have retorted, in phrase they had found a policy. They never go beyond a nod to Bill Clinton, “It’s about Brexit, stupid”. I am the phrase to explain why a free trade agreement older and wiser now: the context of the Bill might be would be worse than membership of the single market. Brexit, but the content is about nothing less than the We know that if you export into another market constitutional and legal integrity of this country. As without being a member of the single market you have the noble Baroness, Lady O’Neill, said, that is what we to observe the rules, just as many countries do—many must concentrate on. countries that have increased their exports to the I am afraid that the noble Baroness, Lady Morris of single market more than we have, faster and to a larger Bolton, was wrong when she said in her speech last extent. The noble Lord, Lord Mandelson, referred to night that “no one ever said” that Brexit would be the customs union. I wondered whether it was the “easy”. I found a list of 11 such culprits, among them same distinguished noble Lord, Lord Mandelson, the no lesser luminaries than Liam Fox, John Redwood Commissioner who used to preach the virtues of free and Michael Gove.Another favourite adjective is “simple”. trade—that it was a spur to productivity and helpful Brexit Secretary David Davis breezily said: to consumers—as he was defending without further “It’s very simple. At the moment we leave, Britain must be argument, just by the phrase, a customs union that back in control. And that means EU law must cease to apply. To imposes very high tariffs on food and goods, including ensure continuity, we will take a simple approach”. textiles and clothing, from poorer countries. I found It is all going to be a piece of cake—maybe even a piece that very difficult to comprehend. of Boris Johnson’s cake, the type you can have while 1687 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1688 also eating it. But as the noble Earl, Lord Sandwich, Lord, Lord Judge, warned strongly in this debate, just said, that gives you indigestion. as he did on the “Today” programme yesterday, when Besides ease and simplicity, the other assurances he even managed to subdue John Humphrys: we were given about the nature of the Brexit process “We need to wake up to this”. were of certainty and clarity. In her foreword to the Perhaps this Bill can be the catalyst for a wholesale White Paper last March, the Prime Minister said the reform and improvement in the processing of secondary Government’s first objective is to provide, legislation, as several noble Lords proposed. After all, “as much certainty as possible as we move through the process”. as my noble friend Lord Sharkey commented: “Sifting She referred to the Bill as an essential part of the plan is not scrutiny”. The second challenge is to sort out for clarity and reassurance. That is not what the how, in the words of the Constitution Committee, Government are delivering, and my noble friend Lady “the Bill risks fundamentally undermining legal certainty in a Kramer deplored the instability being created for number of ways”. businesses and individuals. The problem, as the noble That is quite a contrast to the certainty that the Prime Lord, Lord Higgins, said, is that they cannot even tell Minister promised. This is because of lack of clarity us where they want to go. This is, suggested the noble about the creation, status and interpretation of retained Lord, Lord Cormack, because of too many back-seat EU law and how it can be challenged. drivers. For goodness’ sake, choose the destination, The noble Lord, Lord Norton of Louth, my noble demanded the noble Lord, Lord Bridges. friend Lord Beith and the noble and learned Lords, The noble Lord, Lord Leigh, reproached those he Lord Mackay of Clashfern and Lord Judge, highlighted feared were talking down our negotiating position—but the anomaly of preserving the supremacy of EU law I think he needs to find the mote in his own Government’s post exit, while the noble and learned Lord, Lord eye. Because, as the noble Baroness, Lady Boothroyd, Thomas, warned about undermining the independence sagely observed, it is the side that is supposedly winning of judges. The committee’s suggestion, to give all that is blowing a fuse. It says everything about our retained law the status of primary legislation, is one current, sorry situation that although the EU can we will no doubt want to examine very carefully. secure consensus among 27 countries, the British Cabinet Many noble Lords have rightly opposed the proposed cannot achieve consensus among 27 Ministers. exclusion of the European Charter of Fundamental Rights, as do we on these Benches. The charter is the The task of scrutinising and reforming the Bill is key to unlocking the meaning of EU law and it makes huge. We are fortunate to have had the pioneering no sense to exclude it when that law is itself being kept. contribution in debates in the other place, and since, Why, as my noble friend Lady Hamwee asked, is it, of the former Attorney-General Dominic Grieve. We “singled out as the exception to … continuity”.—[Official Report, must pick up the baton. We are aided in that task by 30/1/18; col. 1410.] superb briefings from experts from many organisations, The noble Lord, Lord Wilson of Dinton, was similarly and now by the hugely valuable report from the baffled by its exclusion. The noble and learned Lord, Constitution Committee, which warns us of “uncharted Lord Goldsmith, recalled that the charter adds not territory” and, only rights absent from the European Convention on “a legal undertaking of a type and scale that is unique and Human Rights but also remedies. The noble Baroness unprecedented”. the Leader of the Opposition reminded us that David It also says, as many have quoted, that the Bill is, Davis had himself taken a case based on the charter to “fundamentally flawed from a constitutional perspective in multiple the ECJ, so it is rather hypocritical of him to deny this ways”, legal remedy to others. and, The great worry articulated by many noble Lords “as drafted is constitutionally unacceptable”. and noble Baronesses, and which we on these Benches It is certainly not a boring Bill, as the noble Lord, share, is that the legal framework of rights and protections Lord Hill, feared. built up over the last 45 years will be at risk—including The noble Lord, Lord Dobbs, warned that there those relating to inequalities and human rights, must be no attempt, employment, the environment and public health, and other fields. The noble Lords, Lord Cashman and “to make a constitutional Horlicks of this Bill”.—[Official Report, Lord Triesman, fear the risk of scapegoating and 30/1/18; col. 1395.] reminded us of the vow “never again”, and the noble Well, that is already the case. We will have to smooth Baroness, Lady Campbell, fears the loss of disability out the lumps with some very rigorous stirring. rights.Despite the Government’sassurances, the freelance It is extraordinary, considering the rhetoric about comments from some Ministers looking forward to regaining sovereignty, that the first defect we will have slashing red tape have not allayed those fears. to deal with is that Ministers rather than Parliament I am grateful for the report of the Joint Committee are taking back control. As the noble Lord, Lord on Human Rights and will be perusing it with care. In Lisvane, who as we all know is a little bit expert on addition, as the noble Baroness, Lady Kennedy, said these matters, said, in respect of criminal measures like the European “if the Bill before us is enacted without significant amendment, it arrest warrant, and the noble Baroness, Lady Sherlock, will represent the largest single peacetime transfer of power from said in respect of family law, it is impossible for the Parliament to the Executive”.—[Official Report, 30/1/18; col. 1490.] UK to unilaterally deliver reciprocal arrangements. I Apparently, these are not Henry VIII but Cromwellian would suggest to the noble Lord, Lord Hogan-Howe, powers—though whether Thomas or Oliver of that that the Metropolitan Police are very keen to stay in ilk, I will not adjudicate. As the noble and learned Europol and to have access to EU databases 1689 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1690

[BARONESS LUDFORD] detractors that what this House brings to our democracy Many noble Lords spoke of the threat to the devolution is not final decision-making but the wisdom of years settlements. The noble and learned Lord, Lord Hope, of experience and public service devoted to the future was astonished at the Government’s failure to respect of our nation and the interests of citizens. Decry their them and said their changes were naive and very expertise, and the Government risk losing both credibility damaging. My noble friend Lord Purvis and my noble and help. and learned friend Lord Wallace of Tankerness raised Hearing virtually all 188 speeches has been a privilege, similar fears, while my noble friend Lord Thomas of as well as quite a bit of fun, with the call for help from Gresford thought that the best thing to do would be to the noble Baroness, Lady Northover, from “Hope, remove the devolution provisions from the Bill and Judge and Pannick”; the discomfort of the noble Earl, start again. Lord Sandwich, at his father’s posthumous victory In addition, there is particular concern about the over him in the referendum outcome; the salivation of effect of Brexit on the peace in Northern Ireland and the noble Lord, Lord O’Donnell, at the thought of the all-Ireland integrated economy that has flowed raising tax by secondary instruments; and the invitation from the Good Friday agreement. Many noble Lords, of the noble Lord, Lord Lisvane, to three imaginary among them former Secretaries of State for Northern aunts to see “Reservoir Dogs” or “The Texas Chainsaw Ireland, expressed this concern, which we fervently Massacre”, conjuring up images of the nights of relaxation share. spent by the noble Lord, Lord Callanan, when released In our consideration of this Bill, we will want to from the Chamber. But there was also some solemnity. pay some attention to the lack of clarity about what Few will forget the words of the aunt of the noble happens next autumn. Parliament and the people need Lord, Lord Krebs, his only family member to have to keep control of the country’s future through a survived the war in Nazi Germany, who said that it meaningful vote in Westminster and a final say for was mad, voters, in which they have the option to choose an exit “to begin to take apart the structure that we put in place to from Brexit. A transitional agreement and a long-term prevent this happening again”.—[Official Report, 30/10/17; col. 1427.] agreement will mean a lot of rewriting of the Bill, but That was a poignant reminder of what the EU is all we cannot yet see how. Many noble Lords supported about, as my noble friend Lord Radice recalled from the option of a final say for citizens and that this his 1955 bike trip across Europe. Perhaps that is why should be an option after a meaningful vote in Parliament. Clause 1 is like a dagger to the soul of the noble Lord, Indeed, David Davis and Jacob Rees-Mogg have in Lord Butler. the past supported such a two-step process, with a confirmatory further referendum once the facts are Meanwhile, the right reverend Prelate the Bishop of known. Leeds invoked Martin Luther King with: … In conclusion, we on these Benches believe that “If we do not know what we die for, we have no idea what we … live for”, Brexit would be a disaster for this country, not only economically but socially and environmentally. This then asked: Bill threatens to ravage the constitutional and legal “Once we have done Brexit, then what? What was it for? Who fabric of the UK and its parts. We have our work cut do we think we are?”. out. We will need the input not only of the Brexit He stressed that the answer should be about human anoraks, among whose number I proudly count myself, flourishing and a common good. He also lamented the but of every single legally and constitutionally informed atmosphere around Brexit, where arguments that are brain, many of whom have spoken impressively in the inconvenient are ridiculed, and where there has been a, last 36 hours. “normalisation of lies and … demonising of people who … The sniping directed at this House for daring to venture to hold a contrary view”,—[Official Report, 30/1/18; subject this Bill to forensic scrutiny is far off the mark. col. 1386-87.] Far from being seen as sabotage, I believe there will be with an “undisguised language”of suspicion, denigration some gratitude for our efforts in making this Bill fit for and vilification. As he said, our media have not helped. purpose in all but the most ideologically blinkered I also challenge our country’s so-called leaders to get a circles. As my noble friend Lord Beith said, we are just grip on this. trying to fix the steering wheel and get the Bill through With only the rare exception, these near-200 speeches its MOT. have all said that we are not questioning that we will leave the EU and that, to do so, we must have everything 9.47 pm ready in time. But the Bill is not yet—in the words of Baroness Hayter of Kentish Town (Lab): My Lords, the noble Lord, Lord Hague—in its “perfect, finished this has been the most extraordinary debate, has it form”, able to bring EU law into our legislation. It not? We have heard from former judges, Permanent fails to give Parliament its rightful say. We need, in the Secretaries, EU Commissioners, MEPs, Cabinet and words of the noble Lord, Lord Cormack, an assertion Brexit Ministers, and former Speakers, Leaders and not an abdication of parliamentary democracy. Chief Whips of your Lordships’ House. We have As the Constitution Committee said: heard from former ambassadors, negotiators, Attorneys- General, high commissioners and governors, party “The Bill as drafted is constitutionally unacceptable”. leaders, Chiefs of Defence, trade unionists, farmers, a In seeking to meet the “essential” but “unprecedented” police commissioner, a Clerk of the Commons and a task of converting EU law into domestic law, it risks Lord Chancellor—to say nothing of current lawyers, “fundamentally undermining legal certainty”, causing, Bishops, academics and medics. It is a reminder to our “constitutionally problematic uncertainties and ambiguities”. 1691 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1692

Furthermore, the Bill, will receive the document on the same terms? Once “represents a challenge for the relationship between Parliament more people have read it, perhaps many will side with and the Executive”, the Justice Minister, Philip Lee, who says that if the and grants Ministers “overly-broad powers” and, figures are right, there is a “serious question” over whether a Government could legitimately lead a country “greater latitude than is constitutionally acceptable”. along a path that the evidence and rational considerations To quote the right reverend Prelate the Bishop of indicate would be damaging. In the words of my noble Leeds—I am sorry, he is popular today—again, friend Lord Liddle, the thrust of our argument is that “if ‘taking back control’ by Parliament is to mean anything, it we must challenge the vacuum left by this hapless must mean refraining from bypassing the essential scrutiny that Government and that Parliament must be placed centre … Parliament is required to provide. Hard parliamentary scrutiny stage in the coming negotiations and approvals. Just as might be inconvenient … but the … consequences of granting Ministers unprecedented powers … must be considered, as they the European Parliament has a vote on the deal, so will … change our assumptions about democracy”.—[Official must our Parliament, including on any proposal for Report, 30/1/18; cols. 1386-87.] the Government to walk away without a deal. The Minister would be well advised to heed such Recently, we have heard a new word—BINO, or words. The noble Lord, Lord Bridges, warned that Brexit in name only—which the lifelong Brexiteers so such powers might become the mother of all Henrys, fear. I do not know about that. I do not know how referring, I gather, to Elizabeth of York. long the transition should be or on what terms, or exactly what arrangement would best protect our jobs, Much has been said, so I will touch on just five health and social services, children’s and citizens’ rights areas. First, despite the Government saying that they and the future of our grandchildren—and yes, I have a would bring over all current rights and protections, six day-old grandson. So, for Ilyas’s future, this is the Bill in fact specifically excludes the Charter of important to me. Although I do not know the answers Fundamental Rights, as covered by my noble and to all that, I know that those judgments must not be learned friend Lord Goldsmith. It also fails to guarantee made simply by a Prime Minister to protect herself that protections cannot later be weakened by secondary from dissidents in her own party, but by Parliament in legislation. We will work to give the retained law the the interests of the country. solidarity of primary legislation. Secondly, it fails to respect the devolution settlements, grabbing back to So, as the Minister rises to respond, I ask him: to Westminster non-reserved areas that reside in Cardiff, guarantee that these wider, national interests will guide Edinburgh or Belfast. Thirdly, still on power grabs, it the hands of negotiators; to listen to the calls from takes to Ministers, rather than Parliament, swathes of across this House to amend the Bill to restore powers decisions relating to the returning law, while creating to Westminster, not No. 10, and provide legal certainty legal uncertainty. Fourthly, there remain big questions for the courts; to ensure that the Government will as to whether the future of the Good Friday agreement preserve both the Good Friday agreement and the has been factored into the Government’s thinking. devolution settlements; to work with noble Lords in Fifthly, it would be for Ministers alone—not Parliament Committee to safeguard the consumer, environmental —to decide on the withdrawal deal, on any transition and employment rights from any change without primary accord and on the framework for our future relations legislation; perhaps to respond to the suggestion from with the EU. That is not acceptable. the noble Lord, Lord Warner, to pause the Bill while the Government make the necessary amendments; Just as, with Article 50, a court decided that it and, above all, to defend the right—no, the duty—of should be for Parliament, not the Crown prerogative, this House to advise him and the Commons on the to take that momentous step, so it must be Parliament— detail of the Bill. That is not much to ask. not No. 10—that takes these enormous decisions that will impact across the nation on our future trading, security, and every other relationship with the EU 27. 9.58 pm This is also why I cannot support the amendment The Minister of State, Department for Exiting the from my noble friend Lord Adonis. European Union (Lord Callanan) (Con): My Lords, the We need to amend the Bill to give Parliament the nature of the debate that has taken place over the past say on these complicated, vital issues—Parliament, two days has shown the value of the expertise that this where Ministers can be challenged, as the noble Lord, House brings to the legislative process. I totally agree Lord Bichard, said, where the implications of the deal with the noble Baroness, Lady Hayter, on this. can be examined and debated, and where decision-makers The legislation we have been debating is of great are then accountable for their deeds. Perhaps at that consequence for the country and is key to delivering stage the elected House of Commons might judge that a functioning statute book on 29 March 2019. It is it needs a people’s mandate, but that is for them, then. therefore not only politically and constitutionally significant but practically essential, as many noble For the moment, our role is to question the Lords have acknowledged. It is in recognition of the Government’s negotiating strategy—assuming they have essential nature of the Bill that I want to emphasise one—and examine the secret evidence on which it is my gratitude to all noble Lords who have contributed based, though as the Times says, to this debate. The sheer number of noble Lords who “voters have the right to see what is being done in their name”. took the time to attend and participate in the debate is We therefore welcome the decision of the Commons a tribute to this House. Peers have excelled in their earlier today to require the Government to hand over contributions, which have been—mostly—constructive their impact assessment to the Exiting the EU Committee. and wholly befitting to the role of this House as a Can the Minister confirm that this House’sEU Committee scrutinising Chamber. 1693 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1694

[LORD CALLANAN] the noble Baroness, Lady Taylor, my noble friend I am sure noble Lords will understand that the late Lord Hodgson, the noble Lord, Lord Butler, the noble hour and time do not allow me to respond to each and learned Lord, Lord Falconer, and many others, speaker individually—I am sure that noble Lords will and I am confident that there will be further helpful be delighted to know that. However, it is clear that this suggestions to come in Committee. debate has benefited from the extensive personal I now come to the scrutiny procedures for the knowledge and professional experience in this place. secondary legislation which will be made using the Indeed, as the noble Baroness, Lady Smith, set out in powers in the Bill. I of course recognise that the House her opening address, this Bill presents an opportunity has a strong record of scrutiny of secondary legislation for the Government to avail themselves of the genuine under the auspices of the Secondary Legislation Scrutiny expertise on offer in this place. Committee. The Government have always wanted to I know that the noble Lord, Lord Adonis, has ensure that there is sufficient scrutiny of the secondary tabled an amendment, to which I will respond shortly. legislation to come. While major policy change is for I should like to acknowledge at the outset the frustration other Bills, the Government introduced this Bill with and regret which many of your Lordships have expressed triggers for the affirmative procedure on all the key in this debate over the outcome of the referendum. powers. There will be many SIs under the Bill which But we are not here today to revisit the question of contain small and technical amendments which will having a referendum, or to examine the reasons why not substantially change how the law operates for people voted the way that they did. The withdrawal firms or individuals in practice. The affirmative procedure agreement and implementation Bill, which will come would be disproportionate in those cases. before Parliament, will be the opportunity to debate Toprovide greater clarity on this point, the Government and scrutinise the domestic legislation implementing have published draft SIs to show the types of legislative the final agreement we strike with the EU. Therefore, changes that would be made under each procedure. again in the interests of time, I will not address all We have always said that we would listen to Members those points today. Before I come to the noble Lord’s of both Houses in the passage of this Bill. In that Motion, I will address the contributions made by vein, the Government were pleased to accept the other noble Lords on the subject of this Bill over the recommendation of the Procedure Committee in the last two days. I will attempt to cover the main points other place. Those amendments ensured that Ministers but will also place a letter in the Library answering must submit SIs that they are proposing to make questions about the Bill that I have not covered in my under the negative procedure under the three principal answer. powers in the Bill—Clauses 7, 8 and 9—to a sifting There has been much discussion of the delegated committee, which will consider the appropriateness of powers within this Bill. I pay tribute to the noble the procedure. Lords, Lord Newby, Lord Lisvane, Lord Strathclyde, Lord Bridges and Lord Tugendhat, the noble and I know that noble Lords will want to ensure that learned Lord, Lord Falconer, the noble Baronesses, the expertise of this House is properly brought to bear Lady Mallalieu and Lady Taylor, and many others on secondary legislation. I share this view. As my who have spoken eloquently on this issue. I hope that noble friend the Leader of the House set out yesterday, noble Lords will agree that the power to correct deficiencies we will bring forward proposals in due course following in retained EU law arising in consequence of the UK’s appropriate consultations. withdrawal from the EU is essential to achieving the I will briefly address the points raised by the noble core purposes of this Bill: to ensure that our statute Lords, Lord Wilson of Dinton, Lord Brown of Eaton- book continues to function on exit, providing certainty under-Heywood, Lord Howell and Lord Storey, the and continuity for both businesses and individuals. noble Baronesses, Lady Hamwee and Lady D’Souza, The Government do not propose delegated powers and many others regarding the Charter of Fundamental lightly. We are committed to avoiding the twin spectres Rights. The UK has a proud tradition of respecting of permissions to do too much and permissions to do human rights. Leaving the EU does not and will not too little. The power is broad but limited and is, change this commitment. This includes children’s rights, crucially, a time-limited solution to a unique problem. which will of course continue to be protected under We want to strike the right balance between scrutiny the Children Act 1989 and through our remaining and speed, and to ensure that the Government can party to the United Nations Convention on the Rights complete this exceptional task in time for exit while of the Child. I hope that this reassurance will aid the tailoring the powers as tightly to their purpose as noble Lords, Lord Russell, Lord McConnell and Lord possible. It is important that there is no slack in a Storey, and the noble Baroness, Lady Massey, and I power of the exceptional type needed here. The thank them for raising this important issue. Government do not ask noble Lords to accept on trust The Government have been unequivocal about this. how they will be used. The correcting power was Our intention has always been that, in itself, not already adjusted in the other place to limit the scope incorporating the charter should not result in a significant and put the Government’s policy even more firmly in loss of substantive rights. This is because the charter the heart of the power. only reaffirmed the rights which were already protected I have heard the concerns raised in this House. Be under EU law, which will now be brought into UK law in no doubt that the Government are in listening mode by this Bill. It is not, and never was, the source of and are willing to consider constructive suggestions those rights. The Government have also published a for change. Many noble Lords have already made useful non-exhaustive memorandum setting out for each suggestions, including the noble Lord, Lord Lisvane, provision of the charter where the underlying rights 1695 European Union (Withdrawal) Bill[31 JANUARY 2018] European Union (Withdrawal) Bill 1696 will continue to exist as part of retained EU law or Noble Lords: Oh! domestic law or the common law, but the simple fact is that leaving the EU will inevitably result in a change to Lord Callanan: He told me to say that. The wealth the current arrangements. Therefore, it just does not of expertise and experience in this House is ideally make sense to retain the Charter of Fundamental suited to the task of considering and agreeing an Rights of the European Union. The clue is in the title; approach which can command the broadest possible the charter applies to EU institutions and member confidence. I hope that this leaves your Lordships in states, but it applies to member states only when they no doubt as to how seriously we take these questions, are acting within the scope of EU law. We will not be a and I hope that we can continue to engage constructively member state, nor will we be acting within the scope of throughout. EU law once we leave the EU. As such, the charter itself will not be converted into UK law, and I agree I know that devolution, perhaps more than any with the remarks made on the subject earlier in the other issue, has featured in your Lordships’contributions debate by the noble and learned Lord, Lord Brown over the past two days. I pay particular tribute to the of Eaton-under-Heywood, and the noble Baroness, noble and learned Lord, Lord Hope, for his constructive Lady Deech. remarks, of which I have taken careful note. I also thank my noble friends Lord Dunlop and Lord McInnes, We have heard several contributions concerning the the noble Lord, Lord Kilclooney, and many other interpretation of retained EU law in Clause 6. This is noble Lords for their contributions. not surprising, given the exemplary legal minds in this House, and I will endeavour here to speak to the Our priority is to ensure that our withdrawal from concerns raised by the noble and learned Lords, Lord the EU is as smooth and orderly as possible for the Judge, Lord Brown of Eaton-under-Heywood and whole of the UK. The Government remain committed Lord Falconer, and the noble Lord, Lord Kakkar. to the devolution settlements. I agree with the noble and learned Lord, Lord Wallace of Tankerness, that I also extend my thanks to the Constitution Committee this presents an opportunity—which the Government for its report, which many noble Lords have made have seized—for sincere and mature co-operation to reference to in this debate. This is a long and detailed find consensus. The Scottish and Welsh Governments report, and the Government will consider it carefully. agree that there are areas where common frameworks From the beginning we have been committed to working are necessary. The Government agree that in areas collaboratively with parliamentarians to improve the where they are not necessary, those powers should and Bill wherever possible. will be a devolved responsibility. I agree with the noble The Government have heard the concerns raised in Lord, Lord McConnell of Glenscorrodale, that after relation to whether and to what extent our UK domestic we leave the EU they will continue to be able to do courts and tribunals should have regard to post-exit anything that is now within the competence of the decisions made by the Court of Justice of the European devolved Administrations. There will of course be a Union, or to anything done by the EU and its other need for common frameworks in some areas, as the entities, when interpreting retained EU law. The UK is noble Lord recognised, but the outcome of the UK leaving the EU. This will end the direct jurisdiction of leaving the EU means that more decision-making the CJEU. For our courts to remain bound to the powers will be with the devolved Administrations. future case law of the CJEU would be to undermine As your Lordships are aware, we have made a the clear position and ignore the reality of our withdrawal. commitment to bring forward changes to Clause 11, It would also limit the discretion and independence of and this commitment remains absolute. Weare engaging our courts, whose judicial authority we had sought to in intensive discussions with the Scottish and Welsh return. Governments on what those amendments will look We have a world-renowned judiciary, many of whose like, and we are making good progress towards the former members, I am pleased to say, are now in this right outcome.The Chancellor of the Duchyof Lancaster House, and the Bill’s position in Clause 6(2) reflects will travel to Edinburgh and Cardiff this week to the Government’s confidence in the judiciary’s further discuss our proposed amendments to Clause 11, independence and expertise.With this in mind, I emphasise which I hope will reassure the noble Lady, Baroness that Clause 6(2) is intended to reflect in statute our Finlay,and others, on her point about proper consultation strong belief that the courts are best placed to determine with the devolved Administrations.Any such amendments the right approach to questions of interpretation to Clause 11 will of course need to speak to the concerning retained EU law. concerns of the Scottish and Welsh Governments, Clause 6 therefore provides that our domestic courts while ensuring maximum certainty once we have left are not bound by post-exit decisions made by that the EU. In the absence of a Northern Ireland Executive, court, as well as anything done by an EU entity or the we are working closely with the Northern Ireland Civil EU itself, on or after exit day. The courts, however, Service, and we are doing all we can to restore devolved may take such things into account if they consider it government to Stormont. appropriate to do so. Closely linked to these discussions is the work being We believe this provides a clear and certain position carried out on future frameworks, guided by the principles for our courts following our departure from the EU. agreed with the Scottish and Welsh Governments at Again, however,the Government have heard the concerns the Joint Ministerial Committee. We will publish our raised in this House over the last two days, and from analysis of where we expect there to be a need for other sources previously. I know that my noble and legislative frameworks in whole or in part, for informal learned friend Lord Keen is eager to engage with your arrangements, and where we expect that no additional Lordships on these provisions over the coming months. cross-UK mechanisms are required. 1697 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1698

[LORD CALLANAN] This debate has served to highlight the weight of I also thank the noble Lords, Lord Luce, Lord Hoyle, the matter at hand and the importance of this House’s Lord Kilclooney and the noble Earl, Lord Sandwich, scrutiny. I look forward to the forthcoming Committee for their remarks concerning Gibraltar. The Government stage where we can enter into proper scrutiny and are clear that Gibraltar is covered by our exit negotiations, debate on the issues that have been raised over the past and we have committed to fully involve it as we exit the two days. I echo the words of noble Lords who have EU. We will negotiate as one United Kingdom and spoken of our constitutional duty to scrutinise this will leave as one United Kingdom. historic legislation. This place benefits from a wealth I turn to the Motion tabled by the noble Lord, Lord of experience and expertise, and I am confident that Adonis, for another referendum to be held. On this your Lordships will bring this to bear over the coming point, let me be completely clear. The result of the months. referendum held on 23 June 2016 saw a clear majority Amidst some of the more colourful and entertaining of people vote to leave the European Union. On this rhetoric, metaphor and simile, a recurring theme has subject, as on so many others, I can do no better than emerged in this debate: the Bill is necessary, the Bill is to advise noble Lords to look at the comments of my not perfect, and the Bill should be improved and noble friend Lord Hague, who wisely said that it strengthened but not obstructed. There was a visible cannot be in the national interest to participate in a and tangible consensus around these sentiments. referendum merry-go-round. In the European Union The people have spoken and this Government now (Notification of Withdrawal) Act this Parliament have a duty to deliver a smooth exit. We owe this not overwhelmingly confirmed the result of the referendum only to those who voted to leave but to those who by voting with clear and convincing majorities for that voted to remain. Regardless of how people voted, it is legislation. In the general election last year, both parties in the collective national interest to have a functioning campaigned to take us out of the EU, as my noble statute book on the day we leave. This Bill delivers that friend Lady Pidding reminded us yesterday. Only last by providing certainty and stability to businesses, weekend I watched the leader of the Labour Party say consumers and citizens across the United Kingdom that “that ship has sailed” and confirm that, “We are and I commend it to the House. not asking for a second referendum”. You cannot go back to the people time and again in the vain hope that eventually they will give you the result that you 10.17 pm wanted. Lord Adonis (Lab): My Lords, I think it was someone The British people can trust the Government to other than Burke who said that on all great matters honour the referendum result. This does not mean there was more to be said, but I do not think it that the process will be without scrutiny, and of course necessarily needs to be said at 10.18 in the evening we will consult Parliament further. There will be a vote after 190 speakers and two days of debate. in both Houses on the final agreement reached with These matters will be much debated over the coming the EU. Then there will be a withdrawal agreement months. I expect that the debate on the referendum and implementation Bill that will give Parliament and the case for the referendum will gather pace over further time to debate and scrutinise the domestic that period, and I was very keen to put down a marker. legislation implementing the final agreement that we We have not heard the last of these great national strike. debates. We hope, like the right reverend Prelate the Any commitment to a second referendum would Bishop of Leeds, that they can be conducted in a actively undermine our ongoing negotiating position. civilised way. We are very mindful of the fact that the As the Secretary of State for Exiting the European first thing Oliver Cromwell did when he took absolute Union noted: power was to abolish the House of Lords as dangerous “The consequence of putting a second referendum at the end and useless. We intend to ensure that we are not of the negotiation is to invite every single member of the European dangerous and that we are very useful. On that note, Union who does not want us to leave to propose the worst I beg leave to withdraw my amendment. possible deal, in the hope that we will change our mind”.—[Official Report, Commons, 24/1/17; col 176.] Amendment to the Motion withdrawn. This point was reinforced by many noble Lords, including the noble Lord, Lord Leigh of Hurley. We are not going to do that. We are seeking to get the best Bill read a second time and committed to a Committee deal for the UK and we intend to negotiate under the of the Whole House. best possible conditions. To do otherwise would be irresponsible in the extreme. House adjourned at 10.19 pm.