European Union (Notification of Withdrawal) Bill

Lord Foulkes of Cumnock Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 27th February 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank noble Lords for the amendment concerning the European Economic Area, which seeks to ensure that the UK remains a member of the EEA.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I wonder if the Minister will give way—

[Lord Keen of Elie]

Not yet, no. While I understand the issues raised and agree with the desire to debate them in this House, I cannot accept the amendment.

[Lord Foulkes of Cumnock]

I wonder if the Minister can clarify—

[Lord Keen of Elie]

I wonder if the noble Lord will allow me to make a little progress before he launches into the water. This Bill is about the process of our leaving the European Union. It is not about the Government’s approach. I will happily debate these matters with your Lordships, and I am sure that there will be other occasions on which to do so over the coming months and, indeed, years. But as the other place has shown, this Bill is not the place to put constraints on the Government’s approach.

[Lord Foulkes of Cumnock]

What is it that the Minister says? I am obliged to him for giving way. As this is the first time we have heard from the Minister on this subject since the weekend, I wonder if he would care to comment on one of the most significant happenings. A very distinguished Member of this House, who sat through almost the whole Second Reading on Monday and Tuesday—a former Deputy Prime Minister for whom we all have the greatest respect—has said that he is going to oppose his own Government on this. He is completely against Brexit. What is the Government’s reaction? Are they not going to take account of the views of someone so distinguished, someone with such great experience of government and of the European Union? Would the Minister care to respond?

[Lord Keen of Elie]

Yes, of course. The noble Lord to whom the noble Lord refers is not in the House today.

It is my intention to make some progress with this matter. The Prime Minister clearly set out her vision for the future of the UK post-exit in her speech on 17 January, including our future trading relationship with the EU. She was clear that we do not seek membership of the single market. Instead, we seek the greatest possible access to it through a new, comprehensive, bold and ambitious free trade agreement. We want the UK to have the freest possible trade in goods and services with the EU’s member states but also to be able to negotiate our own trade agreements. As the noble Lord, Lord Hamilton of Epsom, observed, we seek our own, bespoke deal.

The United Kingdom has always been a leading voice for free trade, not only in the European Union but globally, and we have been consistently clear that we want the maximum possible freedom to trade for businesses in both Britain and Europe. But we also want to take back control of our laws and control immigration to Britain from Europe.

Being a member of the EEA would mean complying with the EU’s rules and regulations that implement the four freedoms—in respect of capital, goods, services and people—without having a vote on what those rules and regulations are. It would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country. It would mean not having control over immigration. EU leaders in the other 27 states have been clear as to their belief in the indivisible nature of the four freedoms, and we respect that. The people of the United Kingdom voted to leave the EU, not to maintain partial membership of its bodies or institutions. When the people of the United Kingdom voted to leave the European Union institutions, they did not intend that we should leave by the front door and rush back to attempt entry by the back door.

As set out in the White Paper, we recognise that we will require alternative forms of dispute resolution once we leave the EU and are no longer subject to the European Court of Justice. But again, these mechanisms are common both to agreements between the EU and third countries and in international agreements to which the United Kingdom is also party, of which there are many examples. Once we leave the EU, the EEA agreement will no longer be relevant for the United Kingdom. It will have no practical effect. It will be an empty vessel. That is because the agreement is defined as covering all EU members and those three EFTA states—Iceland, Liechtenstein and Norway—which have chosen to join the EEA. As we are leaving the EU, we will automatically be outside this definition, as found in Article 126 of the EEA agreement. So there is no choice open to us to leave the EU and remain a member of the EEA, which would require a separate negotiation with the EU and the three EFTA states that I have just mentioned. For example, Switzerland, which is also a member of EFTA, has separate bilateral agreements with the EU even though it is not in the EEA. EFTA membership is not, of course, the same as EEA membership.

Although it will have no practical effect after the EU exit, we are considering what steps might need to be taken formally to terminate the EEA agreement as a matter of law, as we will remain a signatory to the agreement. This could be done through Article 127 of the EEA agreement on giving 12 months’ notice, or by some other means, but no decision has yet been taken on that. We have laid out in the White Paper, however, the relationship we are seeking: a new strategic partnership which includes a new customs agreement and an ambitious and comprehensive free trade agreement. We are seeking the greatest possible access to the single market as part of this.

The noble Lord, Lord Lea of Crondall, referred to the fact that we would not be at the table. That is absolutely right, and that is not what 52% of our population voted for when they voted leave. It is one thing to have power without responsibility; it is another to have responsibility without power, and that is what we would have in these circumstances. It was suggested that freedom of movement could be open to a variety of interpretations. That is not the view in Europe. It is open to only one interpretation—one which we have been under for a number of years.

The noble Baroness, Lady Quin, referred to the report of the House of Lords committee. I can reassure her that we take the terms of that report very seriously, and we will be taking forward our consideration of it in due course. The noble Lord, Lord Davies of Stamford, referred to the suggestion that somehow we could keep our options open so far as the EEA is concerned, but that is not the case. EEA membership is not an option that is simply open to us if we leave the EU. As I said, it becomes an empty vessel. We have to face up to the indivisibility of the four freedoms, as insisted upon. It is not a case of going to Europe and saying, “We would like to negotiate out of one of the four freedoms”. We are told repeatedly that they are indivisible, and we have to take that into account.

At the end of the day, we cannot embrace membership of the EEA any more than membership of the EU without freedom of movement in Europe. In these circumstances, I invite the noble Lord to withdraw this amendment on the understanding that we cannot retain membership of the EEA for the reasons I have sought to set out.

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[Lord Forsyth of Drumlean]

Except that I have not finished. Finally, on Amendment 22, there is an interesting idea in subsection (2). Ministers have been extremely active in engaging with Select Committees and both Houses of Parliament. My noble friend Lord Bridges has done an outstanding job in talking and engaging with everyone. There is an interesting idea that perhaps it is possible as we go forward with the Bill to find some way of operating with committees of Parliament with some degree of confidentiality, although experience tells me that dealing with Parliament with some degree of confidentiality is not always easy to achieve. I am just about to sit down but I give way to the noble Lord, now that he is awake.

[Lord Foulkes of Cumnock]

The noble Lord is giving former MPs in this House a bad name.

[Lord Forsyth of Drumlean]

I just say to the noble Lord that at least I am not asleep.

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[Lord Foulkes of Cumnock]

My Lords, I will speak briefly in support of my noble friend Lady Quin. Before I do that, I want sincerely to say a word of thanks to the Front Benches on both sides. They have to sit through all these debates—they are obliged to, unlike those of us on the Back Benches. I pay particular tribute to my noble friend Lady Hayter, who has had a very difficult job, treading a high wire; she has done it with great skill and good humour and she deserves our thanks for doing so. I also thank the noble Baroness, Lady Goldie. I do not think that under normal circumstances she would have chosen to spend her birthday in this way, but I am sure that we all wish her many congratulations.

I say to the noble Lord, Lord Forsyth, that the Labour Party was against this referendum. We did not want a referendum. Mr Cameron got us into it in a casual way, without any careful thought of the implications or the impact that it would have. If we had had impact assessments before the vote, we might not have voted to come out. We would have known the implications. That is when we should have had these. We are going to have some very serious impacts in Northern Ireland, as we heard earlier, and in Scotland. The way things are going, we could end up with this whole United Kingdom breaking up, with Northern Ireland opting to be part of a united Ireland and with Scotland as a separate country. That is what David Cameron in his casual way has let us in for. I think that he will go down in history as one of the worst Prime Ministers this country has ever had.

[Lord Kerslake]

My Lords, I support my noble friend Lord Hannay’s Amendment 22. I do so for one simple reason. I have a passionate belief that open government is better government. If we—as those who are in charge, if you like—want people to buy into what we are trying to do, we have to be able to trust them with the information that should be available to them. That is particularly true in relation to Brexit. We know that the referendum campaign was deep and divisive. We reached a point where virtually no one trusted anyone in that debate. That is fundamentally undermining to democracy. There is a growing gap between the governing and the governed, and one response to that is to have transparent government.

We have heard two arguments this evening for why a very simple amendment—to publish the impact assessments that can sensibly be published, which have already been done since the referendum—cannot be made. The first, from the noble Lord, Lord Forsyth, is that you cannot trust impact assessments. Not every impact assessment is good. I might even have been responsible for a few that were not that good. But if that is the argument we are now making—that we will not publish impact assessments because they might be wrong—that way madness follows. What about trusting the people and Parliament to make their own judgment about the quality of the impact assessments? That is what transparent government is all about. If we cannot trust people to make their own judgment about the information, if we worry that they will be depressed because the impact assessments are too downbeat, there is something seriously wrong with our thinking.

The second argument that we have heard is that it might in some way interfere with the negotiations. It is possible that some information published might cut across them, and there has to be a responsible attitude to that, but I worry that that argument is going to be rolled out time and again to keep Parliament and the public in the dark about what is actually happening through the negotiating period to the point where it is impossible to impact the outcome of the process. We have to have a better system than that. I quite believe that Vladimir Putin does not want to publish his impact assessments, but we are not Russia: we are an open democracy and should trust the people to use the information that is made available to them responsibly. That is why I support the amendment.

European Union (Notification of Withdrawal) Bill

Lord Foulkes of Cumnock Excerpts

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

I wonder whether the noble Lord can answer my question in relation to the conduct of the referendum. I was unhappy about the previous referendum because 16 and 17 year-olds were not allowed to vote, EU citizens were not allowed to vote and there was no threshold. In his referendum, which of those three would be included, if any? I would have serious doubts about having a referendum without those three points being taken account of.

[Lord Newby]

My Lords, the noble Lord will recall the attitude that we took when we discussed the previous referendum. We strongly believe that 16 and 17 year-olds should get the vote, not just in referendums but more generally.

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[Lord Robathan]

My Lords, I agree entirely with the noble Baroness that referendums are a bad idea, and I am surprised that everyone else in the Chamber does not agree, especially those on the Liberal Democrat Benches.

Nevertheless, we had a referendum and, as the most reverend Primate said, it was a binary choice: yes or no. People knew what they were voting for, and they voted to leave the EU. It is unbecoming and, if I may say so, patronising of people to attribute to the individuals of this nation the reasons for how they voted. Personally, in 1975 I voted to stay in and some 40 years later, with my experience of the EU, I voted to take back control of this country and put it in the hands of the British people. That is what I have done, and that is what I suspect that most people are expecting from us. It is patronising to suggest that people did not know what they were voting for.

The logic to which the noble Lord, Lord Newby, referred is this: what would happen if in a second referendum the people of this country rejected the Government’s negotiating position? No one has an answer to that, so I would say that there must be a third referendum, but I would not particularly want to get into that.

Finally, perhaps I may direct my friends on the Liberal Democrat Benches—I count them as friends and I hope that they count me as a friend from time to time—to an article published in the Times yesterday by a man called Edward Lucas, who outed himself as a Liberal Democrat—I did not realise he was until then—which suggested that this is part of reinvigorating the fortunes of the Liberal Democrats. I would say the contrary. The noble Lord, Lord Newby, suggested that there might be corrosive and justifiable anger, but the great British people have had their referendum and they do not want another one. So we should just ignore this amendment and carry on.

[Lord Foulkes of Cumnock]

My Lords, I came into this Chamber genuinely unsure about which way to vote and whether to support the amendment. My noble friend Lord Grocott may laugh, but it is a genuine feeling. He and I have known each other for a long time and I hope he will accept that, in relation to this particular amendment, it is a genuine feeling. I support Amendment 3 very strongly indeed.

I am not sure that the debate has helped me, because we have heard eloquent speeches on both sides, by my noble friend Lord Morgan and by the most reverend Primate the Archbishop of Canterbury. I intervened on the noble Lord, Lord Newby, because of my reservations about the referendum itself: the fact that 16 and 17 year-olds were not allowed to vote; that EU citizens were not allowed to vote; that there was no threshold; and the uncertainty about whether it was advisory or mandatory. All of that created a huge problem.

[Lord Morgan]

It was an advisory referendum. There is no doubt about that.

[Lord Foulkes of Cumnock]

I agree. I share that view. However, some people tried to sow confusion and indicated that it had to be accepted. I say to my noble friend Lord Grocott that this is why we need to look carefully at what happens at the end of this long and complicated process.

As I say, I was not sure how to vote, but I am now convinced. The noble Lord, Lord Newby, answered my question. The form of the referendum, its timing, the question, the franchise and all of the other matters will be dealt with in a Bill which will come before this Parliament.

I also support Amendment 3 about parliamentary approval of any deal that is agreed. I envisage—I do not know whether my colleagues agree—that Parliament would then put the proposal to the referendum. That would be the question. So at that time, in that referendum, we would know what we were voting for, unlike the previous referendum. That has convinced me that the way forward is to combine the parliamentary consideration of the deal that is reached and come to some conclusion, and then put it to the people because they will have considered it already. That is the first thing that has convinced me to support this amendment.

The second thing is that I have become increasingly concerned at the tribalism of the Tories on this issue. They are sitting there supporting some kind of concerted campaign to push through the kind of hard Brexit that they want at any cost—and I mean at any cost. The more they do that, and the more they sit there jeering at our partners in Europe, dismissing them as if they were irrelevant in relation to this, the more I will be convinced that we need to make sure that their kind of hard Brexit—

[Lord Hughes of Woodside (Lab)]

Does my noble friend agree, given what happened in Scotland, that every referendum is greeted with, “We will have to have another one because we do not like the result”? What happens if the second referendum is closer than the last one? Will there be a third referendum and a fourth referendum? It is an abrogation of responsibility.

[Lord Foulkes of Cumnock]

No. As my noble friend Lord Hain rightly said, in Scotland and Wales what was put to the people was absolutely clear. It was a specific proposal—there was no doubt about it—to set up a Parliament for Scotland and a Parliament for Wales. What we put at the last referendum was not as clear. We did not know the way forward; we did not know the options before us.

[Lord Tyler (LD)]

Perhaps I may help. I think I am right in saying that all previous referenda have always been confirmatory. They agreed to what Parliament set before the nation. That was not the case, of course, in June of last year.

[Lord Foulkes of Cumnock]

I find myself, unusually, agreeing with the noble Lord, Lord Tyler. Having seen him on television recently, he has taken me by surprise. They have been confirmative and that is what we are talking about in this referendum. I think the noble Lord, Lord Newby, agrees that it will be a confirmatory referendum after Parliament has agreed or otherwise the proposal that comes from the Government in relation to Europe. On that basis I will back his amendment.

[Lord Hamilton of Epsom]

My Lords, there are two scenarios vis-à-vis the attitude of the EU towards our leaving it. One is that it will be absolutely delighted that we are going. A thorn will have come out of its side once the UK has departed and it will be able to proceed with the federal dream it has always had. Therefore, it will want to quickly get on with an agreement and say goodbye to us. The other scenario is that the EU will regard the UK leaving as a hole in the head. As the noble Baroness, Lady Falkner, said, it will present it with an enormous budgetary problem. It will probably be contagious and will lead to other countries in the EU wanting to leave as well. The noble Lord, Lord Newby, says that we must trust the EU. Well, hold on. The people who run the EU are not renowned for being overtly democratic. Let us face it: they put the whole objective of the federal dream above all else. Therefore, they will say that we must go to any lengths that we possibly can to ensure that the United Kingdom stays in the EU.

How do you do that? You offer the most appalling deal known to man. Then, knowing that there is going to be a referendum, if this amendment is passed, you can confidently reckon that the British people will vote against that deal and the United Kingdom will stay in the EU. Does that not completely undermine the Government’s negotiating position once Article 50 has been triggered? This amendment should be opposed absolutely ruthlessly.

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[Lord Faulks (Con)]

My Lords, I do not think I am a frog or a lemming, but I was one of the Ministers at the Dispatch Box when we took the European Union Referendum Bill through this House and I think we should have regard to what we decided in Parliament in that Act. A number of amendments were tabled but, I say to the noble Lord, Lord Foulkes, there was no amendment about thresholds, no amendment to nuance the simple question that was posed, no amendment to say that we would only leave if we stayed within the single market, and, in particular, no amendment saying that there would be a second referendum. Why not? Was it because the alternatives were too complicated? There were only two outcomes of the referendum: either we remained or we left. Was it political negligence by parliamentarians not to table these amendments, or were they content with the Bill and its binary question?

We are having this debate contrary to what was generally considered to be the law, which was that it was the right of the Government, exercising the royal prerogative—

[Lord Foulkes of Cumnock]

These amendments were tabled in the previous Bill introduced by the noble Lord, Lord Dobbs, as a surrogate for the Government. If they were tabled and defeated or withdrawn on that occasion, some people may have felt that there was no point in raising them at a later stage.

[Lord Faulks]

I find that remarkably unpersuasive.

As a result of the decision of the people, most thought that there was a power for the Government to negotiate and do the best deal possible. We then had the Gina Miller case, but there is nothing in the Supreme Court judgment, in my view, which either expressly or impliedly endorses the amendment advanced by the noble Lord, Lord Newby.

This is opportunism motivated by the perfectly understandable view, which I share, that we should not have voted to leave the EU. However, if we vote for this amendment, we will be ignoring what we decided in the European Union Referendum Act, we will be ignoring the vote and we will be ignoring the House of Commons. It is time for a little constitutional modesty on our part.