European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

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

[Lord Stirrup (CB)]

My Lords, I will speak briefly to Amendment 12. The issues which it raises are of crucial importance to a post-Brexit UK, but they have only recently begun to achieve any prominence in the Westminster debate and have had very little visibility at all on the wider national stage.

EU Sub-Committee C of your Lordships’ House has recently concluded an inquiry into sanctions policy after Brexit and is currently conducting an inquiry into the UK’s future relationship with the European Union in the fields of security and defence. In both cases, the Government have expressed an intention to act in close concert with our European partners—the Government; not the movers of this amendment—but they have not so far explained how this is to be done.

There are some very clear difficulties. The EU’s policy regarding specific sanctions regimes and its common security and defence policy are agreed at ministerial level within the Foreign Affairs Council. However, the arguments through which final proposals are hammered out take place at lower levels, in the engine rooms of the EU. If one is not present in the engine rooms, one has no influence over the formulation of policy proposals. This means that if the UK wishes, post Brexit, to act in concert with the EU in particular sanctions matters, or if it wishes to participate in common security and defence missions—for both of which it has expressed some enthusiasm—it risks having to do so on the EU’s terms. It would have to do so having had no input to the formulation of policy, and with little or no input to subsequent strategic direction. This is not a position with which I, for one, would feel very comfortable.

The question, therefore, is: what arrangement can the UK reach with the EU that would allow it a suitable degree of influence in these matters? Why should the EU be interested in such an arrangement at all? Perhaps because in those areas in particular, the UK brings capabilities which, in scale and nature, are of an order that few, if any, other European countries possess. However, that does not alter the fact that a non-EU member is unlikely to be given the kind of locus in decision-making that is available to a member. The position of current non-members that align with the EU in these matters is not one that, in my view, would be appropriate for the UK. We need to argue for a separate, tailored arrangement.

Sanctions policy and common security and defence missions are, of course, offshoots of wider foreign policy. If we wish to have a close relationship with the EU in these specific areas, then we will need some mechanism for discussing and agreeing with it in advance the wider international issues and objectives involved. We need an architecture that brings the UK and the EU together to formulate foreign policy in pursuit of shared objectives, and that places UK personnel in those engine rooms of the Union where the specific proposals on individual issues are debated and evolve. We need to agree a modus vivendi for these people that protects the status of EU members while providing for outcomes that are in the best interests of the Union and ourselves. That is a very tall order, and all the more reason, then, for pursuing such an outcome much more vigorously and urgently than has been the case so far.

Amendment 12, and indeed several associated amendments, calls for such arrangements to be not just negotiated but approved by both Houses of Parliament before the provisions of the current Bill are implemented. I do not go so far: I do not believe that the amendments as set out should be agreed. However, I do believe that they provide welcome exposure to issues that are of crucial importance to this nation, that have been largely ignored for far too long and that should at last be accorded the priority they deserve. I hope that the Government will now act accordingly.

[Lord Campbell of Pittenweem (LD)]

My Lords, it is always a pleasure to follow the noble and gallant Lord, Lord Stirrup, who speaks with great clarity and directness.

It may surprise the noble Baroness, Lady Deech, when I say that I have some sympathy for her in putting forward the notion that the European Union has not really paid up sufficiently for its defence. One of the so-called advantages of President Trump’s arrival and his apparent dismissal of NATO has been to cause a much greater degree of realism. The old arguments about burden sharing now take a very practical effect, and NATO countries have agreed on a minimum of 2% of GDP. As far as I can see, all NATO countries are now moving, as far as they can and as quickly as they are able, towards reaching that level.

I support the amendment moved so ably by my noble friend Lord Wallace of Saltaire. I have one advantage over him—as indeed does the noble Lord, Lord Kerr of Kinlochard. We were both present at the Munich Security Conference and heard how the speech was delivered, as much as understanding the content. It was an interesting speech in this sense. The first half was exemplary. The Prime Minister extolled the virtues of the existing security arrangements in Europe and rightly pointed to her role in continuing to ensure that the United Kingdom remained a participant in the application of the European arrest warrant and an active member of Europol when, on the Back Benches of the other place while she was Home Secretary, quite a lot of people in her own party would have departed from both these positions without a backward thought.

Munich is regarded, perhaps over-grandly, as the Davos of defence, and there is no doubt that the Prime Minister’s speech got pretty substantial billing. That is why I and many others found the second half so disappointing, provoking as it did an American listener—whom I believe to have had Republican sympathies—to say, “Where’s the beef?”. The truth is that the Prime Minister had nothing of substance to say in addition to the paper that was published by the Government last September.

There was no hectoring from the Prime Minister, but there was certainly a degree of lecturing. In a sense, what she said can be summed up as: the security regime of the European Union is extremely good, but we are leaving it, we want you to help us replace it with a treaty, and, if you do not agree to what we want—and here is the lecturing to which I referred—you will bear the responsibility. That is hardly the way to win friends and influence people in a gathering of experts and people with enormous experience in the realms of security and defence.

There was one element of the Prime Minister’s speech that has not, so far, received sufficient consideration. She said that,

“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.

I thought that the whole purpose of Brexit was to have nothing to do with the European Court of Justice. If that is not now the Government’s position, it might be argued that the door of the ECJ has been opened, if only slightly. Perhaps it was too Delphic a sentence to attach much significance to, but it has not been the subject of further explanation.

As has already been hinted at, the consequence of leaving is that the United Kingdom will become, in European Union terms, a third country. That is relevant to the issue of participation in Europol and the European arrest warrant. It raises a number of questions—some of which are being legally disputed—about whether or not the kind of arrangement the Government appear to wish to achieve would necessarily involve the role of the European Court of Justice. There are strong arguments on both sides, but the matter remains uncertain.

Before I move on to the question of defence, perhaps I may make one last point on security. Everything in these debates seems to end up around Ireland in some way or another. Ireland is a foreign policy issue because the treaty is an international treaty lodged with the United Nations—and it is also an issue to which we must have regard in considering the question of security. As I understand it, the Government are considering the creation of a virtual border based on electronic means. At the same time, they are telling us that cybercrime is on the rise and is one of the principal issues which may have an impact on our security. If people can get inside the computer system of the Pentagon, I doubt they will find it too difficult to get inside any electronic border that we may create between Northern Ireland and the Republic.

On defence, it is quite true—unassailable—that NATO is the bedrock of our defence. But it is also true that in NATO and the European Union there is a more considered determination to provide much more co-operation. The two institutions had their head offices at the same time in Brussels and for years they would not speak to each other. Now, at the very centre of the policies of NATO and the European Union is a determination that there should be a higher degree of co-operation.

There has been discussion about the common defence and security policy but, although it now becomes an important element in the consideration of these matters, no one has yet mentioned PESCO. This is not a junior form of a place where you can buy your groceries but—I have reservations about the language—Permanent Structured Cooperation. Essentially, it is the countries of the European Union concentrating on co-operation on defence matters so as to ensure that collectively they might make a more substantial contribution to NATO. We are not members of PESCO—recently formed—and if we leave the European Union we will cease to be present at meetings of EU Defence Ministers and Foreign Ministers. We will no longer be involved in the decision making of the common defence and security policy. As a third party, our participation in operations will be at the discretion of the other member states. I see that as a highly deficient alternative to what we presently enjoy.

The security and defence consequences of our departure, as has been pointed out, were never properly discussed—any more than the political consequences. But this evening we are concerned with security and defence and there needs to be clarity. If the noble and gallant Lord, Lord Stirrup, had any responsibility for it, I am sure that we would have clarity. The reason there is no clarity is that no decisions have been made. That is why, when the Prime Minister at Munich said that this was an urgent matter and we must get on with it, it did not receive the kind of ready welcome she might have expected.

The amendment is essential if we are to cause—to force, if you like—the Government to come clean on what their proposals are: to go beyond the document published last September and to set them out in detail. It is a matter on which the European Union is anxious to have detail and I see no reason why it should not be public rather than private. That is what the amendment is designed to achieve and why it should be supported.

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[Baroness Goldie]

Yes. My position that I advance to the noble Baroness—I was just going to come to this in my speech—is that there will be a subsequent opportunity for Parliament to look closely at whatever the withdrawal agreement is and its implementation. In addition, the Government have committed already to providing Parliament a vote on the final deal. Parliament will be given the opportunity to scrutinise the future relationship between the UK and the EU. That is why I submit that the Bill before us is essentially of a mechanical nature. That is what it is: it is trying to ensure, as we leave the EU, that we make sense of transferring the necessary laws, enactments and regulations, whatever they may be, into the statute book of the United Kingdom. The noble Baroness is quite correct that Parliament should have that right to scrutiny, of understanding what the agreement is and questioning how the implementation will take place; I am pointing out that these opportunities will be there. Parliament will not be denied that opportunity.

[Lord Campbell of Pittenweem]

Will the noble Baroness give way? I shall be very quick.

[Baroness Goldie]

My Lords, I would be happy to give way later, but I am quite anxious to make progress. Important points have been raised. I want to try to keep the theme running as to how I will respond to them.

The noble Lord, Lord Adonis, referred to the Prime Minister’s speech in Munich. She gave a very important speech because she detailed further how the UK envisages future collaboration with the EU on internal and external security. She reiterated our unconditional commitment to European security. I turn to a very important point raised by the noble Lord, Lord Hannay, and echoed by the noble Lord, Lord Adonis. I say without equivocation that we remain absolutely committed to ensuring European security and developing this deep and special partnership. Our desire for a close working relationship on foreign and security policy is not conditional on other areas of the negotiations. I hope that that reassures the noble Lords.

[Lord Campbell of Pittenweem]

We have, effectively, a willing buyer and a willing seller when it comes to security and defence. Why not take the opportunity of concluding that bargain? It would be much easier to do than, for example, the trade agreements that we hope to deal with in the future.

[Baroness Goldie]

This is like the fair in Paisley: things coming from one side, interventions coming from the other side and voices from behind me. I am not sure that I entirely agree with the analogy. It is the case that explorations are taking place, if you like, between a buyer and a seller—that is what a negotiation is—but these are sensitive negotiations. I am trying to make clear in the course of my speech—perhaps if I can make a little progress it might become more apparent—just how committed the Government are to addressing the issues raised by your Lordships. They are issues of real concern and are certainly of vital importance. That is because our shared values—those values between the United Kingdom and the EU—are manifest and universally acknowledged. I hope that universal acknowledgement understands that we do not need the text of the Bill to explain to everyone that it is there. I hope that everything that we have done as a member of the EU and all that we are doing in the conduct of the negotiations, particularly as made clear by the Prime Minister’s remarks, will reassure all just how serious we are about these matters.

We have proposed a bold new approach to security co-operation with the EU, including a comprehensive framework for future security, law enforcement and criminal justice co-operation, and for future co-operation on foreign and security policy. I say to the noble Lord, Lord Wallace of Saltaire, that, as we leave the EU, of course our consultation on the CFSP will change, as it inevitably has to do. With considerable justification, many of your Lordships—the noble Lords, Lord Wallace of Saltaire, Lord Judd, Lord Hannay and Lord Campbell, my noble friend Lord Hailsham and the noble Baroness, Lady Hayter—were anxious to get some idea of what the post-Brexit position would look like in relation to these issues of critical importance.

I say by way of preface to all of this that, as a Government Whip for the Foreign and Commonwealth Office and for Defence, I have regularly found myself at this Dispatch Box outlining positions on foreign affairs and defence which are UK derived. They are positions that we have reached by ourselves and as a consequence of our NATO membership—which is very important, as acknowledged by the noble Lord, Lord Campbell—as part of our P5 position on the United Nations Security Council or as a consequence of discussions with our global allies. We do that now on our own account. I make that point to explain that, while we value the relationship that we have had with the various agencies in the EU, there is another territory out there that is also extremely important to the future security not just of this country and the EU but of our global partners.

European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I agree very substantially with my noble friend Lord Pannick’s general approach. Any attempt to repeat or paraphrase what he said would merely weaken it. I shall not do so, but I will make two comments.

First, on the supremacy question, my noble friend is clearly right that this is a wholly alien notion and we do not want it incorporated in the Bill. I confess I could not find what he calls Amendment 31A in my Marshalled List—this must be my fault. Is it the same as what I have as Amendment 32B? I suspect it may be. I certainly read that amendment as modelled on Professor Paul Craig’s proposal for how to deal with this. If that is the position—my noble friend nods helpfully to indicate that it is—I entirely support that approach. The language is substantially Professor Craig’s and it is altogether satisfactory.

Secondly, my noble friend canvassed an outline of the alternative ways to deal with giving legal status to, and the categorisation of, retained EU law. On the one hand, the Constitution Committee suggested that we turn it all into UK primary legislation. Then there is Professor Paul Craig’s competing approach, which is also endorsed by the Bingham Centre. I have a huge preference for the latter, not the former. As Paul Craig points out, we pass, in round figures, about 40 statutes a year. If we suddenly turn 10,000 or so instruments—the figure I think he suggests—which obviously in the ordinary categorisation would fall into the category of secondary legislation, into primary legislation, with all the consequences of that, we would simply overwhelm the statute book. We would make it impossible to deal with them properly as statutes. We would then inevitably start needing Henry VIII clauses in full measure. We would devalue primary legislation and give credibility and justification to use of Henry VIII powers, which is the last thing we want to do. Go down the Craig-Bingham line, not the Constitution Committee’s recommended route. I say that with all respect and deference to the committee, whose report is overall an enormously helpful document.

[Lord Campbell of Pittenweem (LD)]

My Lords, I can be brief. I wish to support the various submissions made by the noble Lord, Lord Pannick, but also to draw your Lordships’ attention to some revealing contents of the Constitution Committee’s report, in particular the words of the Solicitor-General, which seem to indicate very clearly the weakness of the Government’s position.

As I recall, the noble Lord, Lord Pannick, confined himself to the first sentence of paragraph 69 of the report:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


He went on to say that this is a recipe for confusion and legal uncertainty. I invite your Lordships to look to paragraph 67 on page 23 of the report, particularly the direct quote from the evidence given by the Solicitor-General. He says of the powers under discussion that,

“there is nothing unusual about these powers. However, I accept that the way and the context in which they are used is somewhat unusual … I accept that we are in new territory here. Having said that … when embarking on new territory, all Ministers tread extremely carefully”.

If this is genuinely new territory, it is inevitable from the Solicitor-General’s expression that there is no precedent. If there is no precedent for exercise of powers in the way the Government seek, that is not just something where we should tread extremely carefully; it is something which should be rejected outright.

[Lord Mackay of Clashfern]

I indicated at Second Reading that I would support the propositions that the noble Lord, Lord Pannick, has enunciated on behalf of the Constitution Committee. Bringing into our system legislation from an alien system and doing so reasonably consistently require it to have an allocated status of some kind. Making it primary legislation is probably the best. Otherwise, there will be doubt about precisely which item of legislation goes to a particular area. The result will be to make it possible to dispense with the rather outmoded idea of the supremacy of EU law once Brexit comes along by the date which allows our ordinary system to operate.

I have tremendous respect for the Bingham system and, as your Lordships know, for the noble and learned Lord whose name it carried. It has kept up the traditions and quality of his work wonderfully—I should perhaps in passing declare an interest: I find it very useful to support the Bingham institute in connection with its funding. However, it makes quite a lot of the difficulty of using Henry VIII clauses. This is a very special situation, as the Constitution Committee recognised some time ago, because trying to fit together two systems of legislation is certainly difficult. We must remember the timescale involved in trying to do it any other way. I shall not comment on the detail of the powers to amend proposed in the Bill—that is for a later stage—but it is reasonable at the moment to accept that this is a very special situation with a necessary operation which requires to be performed in reasonably short time to make the whole thing work. Therefore, the idea that we are dividing primary legislation by this method is open to doubt.

European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, the noble Lord, Lord Wilson, said that it was 50 years since he had practised as a lawyer. Perhaps I may observe to him, once a lawyer, always a lawyer—and he certainly demonstrated that in the way in which he introduced this amendment. The effect of the statute before us is to provide an unfettered discretion, and we should be extremely slow to provide unfettered discretions to anyone. You would not give an unfettered discretion to the captain of a golf club. The idea that we will give 109 Ministers an unfettered discretion seems to me to fly in the face of all constitutional propriety.

It is not even the Secretary of State who is asked to exercise these powers. That frequently appears in statutes where a power is afforded. In this case it is any Minister of the Crown—and, added to that, public authorities, as widely defined. It is difficult to imagine public authorities understanding the whole question of discretion, as we see time and again in the courts when judicial review is successfully taken against local authorities, for example. As the noble Viscount, Lord Hailsham, pointed out a moment or two ago, if you have the power to make by regulation such provision as you consider appropriate, the prospects of judicial review are nil. There will be no review because, in any circumstance where a subjective test has been imposed or offered to the Minister, there can be no challenge. Necessity, on the other hand, is capable of challenge and leaves open the whole question of judicial review where the test of reasonableness arises in the course of the action—in this case of a Minister, or indeed of any of these public authorities.

When the bus with “£350 million a week” was going around the country, and when those who emerged from it, including the blonde bus conductor, told people, “We want to take power back from the European Union and Brussels”, no one said, “We want to take power back so we can give it to 109 Ministers or public authorities”. If they had said that, I rather fancy that the bus would not have received the generous welcome that it did on many occasions.

[Lord Dykes (CB)]

My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, all saying similar things, and I entirely concur with what was said. Therefore, I can be very brief. First, I thank my noble friend Lord Wilson for his remarks. I apologise to him for missing the first minute and a half of his speech because I naively thought that two government Statements would last a bit longer than they did; they were very brief indeed. I surmise that my noble friend referred to my noble friend Lord Lisvane, a very good friend to many of us. I assume he is on onerous public duties in Herefordshire. Sadly, the noble Lord, Lord Tyler, cannot be present due to illness. Therefore, two sponsors of the amendment are sadly unable to be here but that in no way weakens the strength of this message for the Government. I hope the Ministers on the Front Bench will listen very carefully to these words.

It is also worth noting that, apart from a later big grouping, this group contains the largest number of amendments of any group since the Committee proceedings began. This is the subject that most exercises the Members of this Committee and, I think too, quite a number of MPs although they are sometimes under much greater pressure for obvious reasons not to say too much about it.

I was very struck by what the noble Lord, Lord Sharkey, said and by what he said representing the noble Lord, Lord Tyler. Since I am an amateur and not an expert on these matters, I was impressed by the comments of the Bar Council on its worries about these matters. In paragraph 60 of its general statement, it said:

“Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) includes an open-ended power to make ‘any provision that could be made by Act of Parliament’. There are comparable Henry VIII powers in Clauses 8(2) (in respect of regulations to ‘prevent or remedy’ any breach, arising from Brexit, of the UK’s international obligations”.


It went on to say in paragraph 61:

“We consider that these provisions (and in particular Clause 7) continue to raise serious concerns both from the perspective of the rule of law and the sovereignty of Parliament and in respect of legal certainty”,


which we sometimes forget. By the way, as the sunset clause possibilities in Clause 8 have been mentioned by at least one speaker, in paragraph 67, the Bar Council adds:

“While we recognise that the Henry VIII power in all three clauses (7-9) is subject to sunset provisions, we do not think that this is sufficient to address the above concerns. As noted in the introduction to this paper, the operation of the amending powers and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period or under the Withdrawal Agreement”.


I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment. I anticipate a major expression of unease, to put it mildly, when Report stage comes along. I hope and pray that will be so, and we look forward to the Minister speaking in the framework of that need to assuage our anxiety when he comes to reply.

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[Lord Campbell of Pittenweem]

The noble Lord was helpful in trying to give an example for something else. Could he give an example of where something that was “appropriate” could not be covered by the principle of necessity?

[Lord Callanan]

I do not have any additional examples beyond the ones I have already given, but I will certainly write to the noble Lord with alternative information on that.

However, the Government and I believe that a majority of noble Lords in this House will agree that the statute book is not truly effective unless it is tidy. The Bill is designed to provide clarity and certainty on the law; if we cannot remove or correct these redundant provisions this goal will be undermined. However, having said all that, as I have set out, I would be very happy to engage in further discussions with noble Lords. I have very much heard the messages given from all sides of the Committee with a view to returning to this issue on Report. On the basis of those assurances, I hope that noble Lords will feel able not to press their amendments.

European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Baroness Wheatcroft (Con)]

My Lords, 20 months after the referendum we are no closer to knowing what the UK will look like in a post-Brexit world. In a series of speeches this morning, the Committee has heard desperate cries for clarity and certainty in everything from football to horseracing, from transport to the law. But there is no clarity or certainty and this really does not feel like taking back control. I put my name to Amendment 142 because it aims to give back some control of this process to Parliament. It was ably described by the noble Lord, Lord Monks, and then by the noble Lord, Lord Lea. It intends to get some process into what, at the moment, looks like a dreadful muddle.

We need to support all the amendments in this group—but they could all, in their way, hang under Amendment 142. They all demonstrate the need, and the wish, to impose some form of direction on a Government who look as if they would appreciate being given it. They need some help in how they conduct their negotiations with the EU 27, and that is what this amendment intends to deliver.

We have heard that the Government do not want to be shackled; they need to be free to negotiate on their own terms. Nonsense. As we have heard from the noble Lord, Lord Lea, negotiations benefit from having their terms—for both sides—laid out relatively clearly at the beginning. I have seen it from the other side of the table from the noble Lord, Lord Lea, and it is jolly useful to be able to say, “My board won’t put up with that”. It would surely be very helpful for the government negotiators to go into their next round of negotiations with a clear view that they can say, “This far and no further as far as my board—Parliament—is concerned”. The EU 27 are making it very clear what their terms of negotiation are.

So we need to give clarity. We have heard various wish lists from the Government, but hope does not constitute a policy. We now need to empower the Government to go into negotiations with a clear sense of purpose. Like many in this House, I hope that that will include achieving a customs agreement. That is what business needs; it is what the country wants; and it is certainly part of the solution—although not the entire one—to the issue of Northern Ireland, which will be debated later today.

Time is running out, energy is being expended and money is being spent—getting us, it would seem at the moment, precisely nowhere. The Department for Business is going to be taking on an extra 1,000 people—it is nearly there now—to deal with Brexit. Goodness knows how they are going to do that. One knows that Boy Scouts should be prepared, but these people are having to prepare for they know not what and to cover all eventualities. It is like trying to shape water—without the prospect of an Oscar.

There is no point in the Government going into negotiations if they are going to eventually return to Parliament with the terms of a deal—and if the “meaningful vote” is to have any meaning, they will do—if Parliament is already clear that it will not accept that deal. How much more sensible and time efficient it would be to allow Parliament to hear what the Government really want and for us, in both Houses, to have a chance to debate it and to give the negotiators a mandate. That is what this amendment is about. It is very simple really, and I absolutely support it.

[Lord Campbell of Pittenweem (LD)]

My Lords, I support Amendment 142 in the name of the noble Lord, Lord Monks, to which I also have added my name. I can be brief, in view of the effective, coherent and measured way in which the amendment was introduced, and I will confine my remarks to the question of sovereignty.

On the face of it, the purpose of the amendment, which I support, is to involve Parliament more considerably in the process of Brexit. A recurring theme of those who argued that the United Kingdom should leave the European Union was that we wanted to make our own laws. I interpret that, and believe that I am entitled to do so, as being by implication an assertion of the sovereignty of Parliament. To begin with, that was not an implication recognised by the Government, who were forced to do so by the Supreme Court in the case of Miller.

I think it can be argued fairly that sovereignty carries rights and responsibilities and that both of these exist in parallel—some might put it slightly differently and say that it carries powers and responsibilities. But the negotiations that are being carried on by the Government are being conducted on the principle that the Government are answerable to Parliament. The responsibility for the decisions of the Government, therefore, is a consequence of the sovereignty of Parliament. Governments are not sovereign, although some think they are—and it is not difficult to think of Prime Ministers who thought they were sovereign as well. If the ultimate responsibility is Parliament’s, then Parliament has responsibility but no power. I am not sure what the antonym for a harlot is, but I hope I make the point that the sovereignty that we enjoy is sovereignty that carries responsibility.

The purpose of this amendment is to ensure that we give practical application to the sovereignty of Parliament by giving Parliament in these matters a power to fashion the terms of the future of the United Kingdom’s relations with the European Union. To deny that power to Parliament is a breach of our sovereignty.

[Baroness Grey-Thompson (CB)]

My Lords, I support Amendment 147A, tabled by the noble Lord, Lord Moynihan, to which my name is also attached. I have a number of interests to declare in the area of sport, one of which is that I am the chair of ukactive. I am slightly disappointed that sport and physical activity has not had a higher profile within the debate on the EU withdrawal Bill. We cannot assume that sport will be okay just because sport is generally very good at looking after itself.

The noble Lord, Lord Moynihan, raised many issues, and perhaps they are just the tip of the iceberg of the challenges we face as the impact on elite sport filters down to the grass roots. He talked about Cheltenham. It is not just the movement of horses that will be affected. That might be the very visible impact of the legislation, but there will be an impact on the local economy—on the provision of stables, food supplies, grooms and so on—that we will not see until it is too late. We might understand the impact of a high-profile player not coming to the UK or choosing to leave the UK, but we will not see the impact on associated personnel and coaches, on how it filters down to the academy structure, on the potential success of our clubs, and on whether fans choose to go and watch those sports. It will go right down to the individual owner of a burger van parked on the outskirts of a community if there is a huge impact on sport.

We know that the value of community leisure to the UK economy alone is £3.3 billion a year. That has been worked out via a social value calculator. The impact of sport amounts to many more billions. While I agree with the noble Baroness, Lady Randerson, that it might be a pick-and-mix group of amendments, each of them has a massively important impact on the economic prosperity and international standing of our country.

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[Lord Callanan]

Of course Parliament should express its view—but there are a number of ways in which it can do so.

Given that the next grouping on the Order Paper covers approval of the withdrawal agreement, I shall not prejudge that discussion by going into further detail here. That is part of the reason why we have sought to be as transparent as we can while protecting our negotiating position. Noble Lords will, I hope, acknowledge that this is a difficult balance to strike. But they will also note the information contained in speeches by the Prime Minister and other Ministers, in the large number of papers the Government have now published, ranging from White Papers to the raft of position papers on various areas, and in the papers for the negotiations themselves. Most recently, of course, we have also just published our draft text for the implementation period.

[Lord Campbell of Pittenweem]

Access to information does not constitute the proper exercise of sovereignty.

[Lord Callanan]

Having access to that information helps to inform the views of parliamentarians for their many speeches and committee appearances. On top of these publications, and the legislation we have introduced, the Government have further sought to facilitate scrutiny through the frequent making of oral Statements, the timetabling of debates in both Houses in various forms, and through appearing frequently at a range of Select Committees. Of course, we have not covered every subject or satisfied every member of every committee with our answers to every question, but noble Lords should be in no doubt that there has been more parliamentary scrutiny of EU exit than there can have been of anything else in the history of our modern committee system. That is right and proper, and we support it as well as we can. In order to pay tribute to the wide-ranging debate, I hope noble Lords will be patient as I seek to set out, relatively briefly, the Government’s position on these various issues, many of which will be key parts of the wider negotiations on the future economic partnership.

First, on the mutual recognition of professional qualifications, raised in Amendment 144, tabled by the noble Lord, Lord Brooke, the Government have already stated that they will seek to agree a continued system of mutual recognition as part of the future economic partnership. This system will form part of the wider negotiations underpinning trade in services. The joint report from the first phase already includes provisions on the recognition of professional qualifications which apply to UK nationals already resident in the EU at the specified date and, of course, EU nationals in the UK on that date. Those provisions will be included in the withdrawal agreement to provide clarity and security to the individuals affected.

European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Lang of Monkton]

Of course I agree with my Front Bench, and I have already commended it for its willingness to withdraw the amendment. It was tabled so that it could be discussed and Ministers could hear soundings from the Committee. I have given my sounding; perhaps the noble Lord would like to add to that by giving his. He spoke about his own amendment, but I hope that in the last resort he will support the amendment that the Minister will bring forward.

[Lord Campbell of Pittenweem (LD)]

I shall speak briefly to the amendment proposed by the noble and learned Lord, Lord Mackay of Clashfern. I do not do so because I once enjoyed the privilege of being one of his deputies when he was Lord Advocate for Scotland—as did the noble and learned Lords, Lord Hope and Lord Cullen, both of whom are in their places this evening. I do so without detracting in any way from the amendment in the name of my noble and learned friend Lord Wallace of Tankerness. What attracts me to the amendment proposed by the noble and learned Lord, Lord Mackay, is its simplicity and practicality. It is easily understood, and coming, as it were, from a Scottish source, it pays due regard to economy. For those reasons it is well worthy of consideration. Its simplicity makes it easily capable of being understood not just by those who will have responsibilities under it, but by members of the public.

It is for those reasons that I am, with due deference, rather doubtful about the amendment tabled by the noble Lord, Lord Wigley. The problem with it is that, apart from the reference to the Supreme Court turning into some kind of court of arbitration, and I know of no process or procedure that would allow for that—

[Lord Hope of Craighead]

Will the noble Lord allow me to take the opportunity to say that, as he will remember, there is provision in the Scotland Act and in the Government of Wales Act for a reference to the Supreme Court on issues of law—about the competence of legislation and whether something is within the competence of the legislatures? The problem with the situation that we are contemplating now is that the issues that remain in debate are not really issues of law, and I do not see how the Supreme Court could possibly deal with them. In fact, it is very anxious not to get involved in politics. There was a germ of good sense in the scheme suggested by the noble Lord, Lord Wigley, but it breaks down at that point. I am sorry to intervene, but it is worth mentioning that issue.

[Lord Campbell of Pittenweem]

The noble and learned Lord’s intervention is most helpful. Of course, the language of proposed subsection (17), in Amendment 318AA, to,

“refer any question to the Supreme Court”,

supports the view that the use of the Supreme Court in such circumstances would be, to put it mildly, doubtful.

My difficulty with the proposal of the noble Lord, Lord Wigley, is that it is bound to encourage delay. His amendment says:

“The Panel may call witnesses or take legal advice”.


If witnesses are called they may have to be cross-examined, and if there is to be cross-examination there may have to be representation by counsel, or something of that kind. It is not difficult to imagine what is proposed in the amendment turning into something of a full-blown hearing, rather like, for example, industrial tribunals.

Under suggested subsection (15)(a), regard must be had to whether something,

“is reasonable, in all the circumstances”.

As soon as the concept of reasonableness appears in a statute, it opens up the possibility of judicial review. Even if it were not to be granted, none the less an application for judicial review could obviously, and unfortunately, delay the outcome of a decision that might be of considerable economic as well as political importance. For those reasons, however well intentioned the noble Lord’s proposal is, I do not think it stands any proper comparison with that of the noble and learned Lord, Lord Mackay. I therefore urge the Government to give serious consideration to that, for the reasons the noble and learned Lord set out, which I have tried to follow.

[Lord Wigley]

I concur entirely, in that I hope the amendment tabled by the noble and learned Lord, Lord Mackay, gets the attention it deserves and that it is adopted. However, does the noble Lord not accept that in order to assuage some of the feelings that, perhaps unfortunately, have been built up over recent months about there being a will here to impose solutions, we need a mechanism that people at both ends of the telescope can see as balanced and even handed?

[Lord Campbell of Pittenweem]

It is a question of judgment. The mechanism that the noble Lord suggests may achieve the objectives that he sets out, but it will almost certainly encourage delay, and perhaps even more controversy. What is required here is very quick resolution, in an uncontroversial way, of issues that lie at the very heart of the economies, perhaps, of the United Kingdom—and those of Scotland, Wales and Northern Ireland. It seems to me that the noble and learned Lord, Lord Mackay, has pretty well hit the target.

[Baroness Finlay of Llandaff (CB)]

My Lords, I feel a bit like somebody from Relate. I am a Cross-Bencher, I am not a lawyer, and I do not now have an interest in Scotland—although I do have an interest in Wales. I just want to make a few brief comments, to assure the noble and learned Lord, Lord Wallace of Tankerness, that I tried to write a schedule for the Bill to set out the frameworks—but for all kinds of reasons I did not, and felt it would be a waste of massive effort to try to achieve something that I could not. However, I think the idea is commendable that we should put on the face of the Bill the matters that will go to the devolved Administrations, which would then not be for dispute. That may go a long way to assuaging some of the concerns.

I remind the Committee that the noble Lord, Lord Wigley, spoke about the need to be even handed, based on what has gone on before. The amendment tabled by the noble and learned Lord, Lord Mackay, is an enormous step forward. The fact that the Government have agreed to invert Clause 11 is also a major step forward, but there is still more to be done. We need to look at what will happen in the event of deadlock. Having a rotating chair, which has been suggested, would certainly help to establish some sense of equality. The frameworks need to include some sort of equal partners in resolution. I hope that some of the negativism of what has gone before may be laid to rest, because we have to move forwards into the new world. At least we have had some positive suggestions tonight. I repeat my thanks to those who have been communicating with us to try to achieve that—but we cannot just say, “Right, we’re there”. There is more work to be done.

The suggestion of a sunset clause could be helpful too, because that would concentrate the mind, and would provide some reassurance. I had put my name to Clause 11 stand part, but it is now to be replaced anyway, which is a great relief. I hope that we shall recognise, and not forget, the need for equality of voice and equality of representation. The failure to do that in the past should be a lesson to us as we go forwards.

--- Later in debate ---

[The Earl of Kinnoull]

I did. I will send my job application in.

I feel that we must have regard to that issue. I have been through the document pretty carefully, and I feel—this is why my support for the government amendments is so strong—that a good balance has been struck in those amendments regarding the point that I have just made. There is a chance that the devolved assemblies can exercise those powers properly, but if we tip too many in then I feel we will be letting down the citizens of Wales and Scotland.

[Lord Campbell of Pittenweem]

Before the noble Earl sits down, I would like to pick up the point that was made to him at lunch. He will be aware that when the Scottish Parliament was established, a great deal of store was set by the form of the committee system, which it was hoped would be independent and would provide the kind of scrutiny that a second Chamber would afford. I do not think it is challengeable that the committee system has unfortunately become very political, to the extent that it is very difficult for Members on the committee to strike the kind of independence that we sometimes see in Select Committees in the other place and here. A consequence is that an effort to introduce a principle of “holding to account” has not been maintained in the way that it was in the beginning. If that continues, it makes the case for a second revising opportunity—I do not describe it as a Chamber—overwhelming.

[The Earl of Kinnoull]

I am very grateful to the noble Lord for making a jolly good point very well. At the lunch, that was hinted at, with rather less force. I wholly accept his reasoning and agree with what he said.

European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

Ensuring certainty, both for our statute book and our internal market when we leave the EU, is of paramount importance to all parts of the UK. We want all parts of the UK to come together in support of this legislation. It is vital to securing a smooth and orderly exit for the whole UK. In these circumstances, I urge the noble Lord, Lord Wigley, not to press his amendment.

[Lord Campbell of Pittenweem (LD)]

What is the Government’s view of the proposed continuity legislation, from both Wales and Scotland?

[Baroness Goldie]

My understanding is that that legislation has been enacted by the devolved Administrations for what they perceive as a necessary protection of their positions. The Government hope that we can supersede that legislation by coming to good sense around the table and hammering this out—which I think is what all parts of the United Kingdom want.

European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

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

[Lord Howarth of Newport]

My Lords, is it not quite clear that what the Government have to seek to do is restore self-government with a minimum of economic dislocation? I do not see any point in Parliament denying the Government freedom of manoeuvre as they seek to achieve that.

[Lord Campbell of Pittenweem (LD)]

My Lords, it is often said that imitation is the most sincere form of flattery, but I rather think, after our proceedings today, that repetition would not achieve the same objective. I have the advantage of following, yet again, the succinct appreciation of these issues by the noble Lord, Lord Monks, and wish to add only a few thoughts of my own. I will make a contemporary reference. The resignation of Amber Rudd from the Cabinet has not just had consequences for the Home Office but is generally regarded as having had very severe consequences for the balance of opinion within the Cabinet, which leads me to a point that has already been made by the noble Baroness. The requirement to state the terms of mandate might once and for all force the Cabinet to clearly indicate precisely what they are seeking to achieve. A mandate based on principles would not tie the hands of the Government. It would not put handcuffs on the Prime Minister or even, for that matter, Mr Davis. It would set out in a clear and unequivocal way precisely what the objectives were. That, as the noble Baroness has already indicated, would create an opportunity, emboldened by authority. It therefore cannot be argued on behalf of the Government that the passing of this amendment would in any way detract from their ability to carry out an effective negotiation.

European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I almost hesitate to take part in this debate because I do not have the specialist knowledge and understanding of many who have spoken about Northern Ireland. But I do know a little about sectarianism because I was born and brought up in the west of Scotland. Although there was never violence, none the less, there was deep division. Some of that may have been alleviated, but from time to time it still expresses itself, not least when two football teams play against each other.

I want to go back to the terms of the amendment, because I hope I may be able to alleviate the anxiety of my noble friend Lord Alderdice. It is important to consider the whole terms of the proposed clause. It begins by saying:

“In exercising any of the powers under this Act”—


so it confines its application to this Act and not to any other Act. Subsection (2) says:

“Nothing in section 7, 8, 9 or 17 of this Act authorises regulations”—


among which my noble friend picked out with anxiety subsection (2)(b)(iii) relating to,

“a requirement for security checks”.

It is only if a Minister of the Crown, with the authority and powers conferred on them by these sections proposes to act, that these other matters arise. That does not preclude in any circumstances, nor could it, the exercise of other powers for the purpose of security.

The noble Lord, Lord Trimble, knows more about this and was properly rewarded for his enormous contribution to the welfare of the people of Northern Ireland. He talks about the very last two lines of the amendment:

“that did not exist before exit day and are not subject to any agreement between Her Majesty’s Government and the Government of Ireland”.

Many individuals, like the noble Lord, argue fervently that the United Kingdom as a whole left, or proposes to leave, the European Union and therefore the reference to “Her Majesty’s Government” is entirely consistent with the position which says: “Irrespective of the views of the people of Northern Ireland, who after all voted to stay, none the less, it is the Government of the whole of the United Kingdom to which are accorded both the responsibility and the power”.

If this matter were easy, why has there not been a solution? I think I am correct in saying that I do not believe any of those who have spoken have offered a solution. We know that the Cabinet is divided. We know that that Robespierre, Mr Jacob Rees-Mogg, has already issued yet another of his threats. We know that the Government are deeply divided. If this is a simple issue, perhaps the Minister will be able to tell us precisely what the solution to this matter is that the Government now endorse. I think I can argue with some force that they have had plenty of time to get to that conclusion.

As has already been said, I think by the noble Lord, Lord Hain, the Good Friday agreement is a fragile piece of agreement. The noble Lord, Lord Trimble, shakes his head. From time to time there are terrorist outrages in Northern Ireland, and were it not to be fragile in any way one would not have expected the kind of attacks that we have seen on prison officers and members of the police. I believe the agreement combined both symbolism and practicality, and I support the amendment because it does exactly that.

It is said that those of us who talk about risk are overstating the case. I want the House to remember for a moment how many people on both sides of the argument died, and how many people’s lives were materially affected by the Troubles. I have one illustration in mind, which is entirely personal; other noble Lords will have equally valid and compelling illustrations. I remember the three young privates of the Royal Highland Fusiliers who, on the promise of sexual favours, allowed themselves to be persuaded to go to a flat where they were executed by being shot in the back of the neck.

A huge price has been paid for this agreement, and nothing should be done that has the effect of undermining it. That is why I support the amendment.

[Lord Bridges of Headley (Con)]

My Lords, I rise with a considerable amount of hesitation because I am very conscious of the level of experience in this House on matters pertaining to Northern Ireland, not least my noble friend Lord Patten, who spoke with considerable eloquence in introducing his amendment.

I utterly reject the views expressed in some parts of the media that noble Lords, including my noble friend, should not be allowed to express their views on this issue. That is what we are here to do, it is what we should do, and we should not face the opprobrium of the media in so doing. The issue is whether we get the balance right between advising and scrutinising this important piece of legislation as opposed to blocking it and thwarting the will of the people. That is an issue that I am sure my noble friends have very much in mind as we debate this amendment and all others.

I stand shoulder to shoulder with all noble Lords who wish to see the Good Friday agreement remain intact as we leave the EU. None of us, whether we voted to leave or whether, like me, we voted to remain, wishes to see Brexit undermining that agreement, nor do any of us wish to see Brexit undermining the union of our nation itself. I would find it very difficult—I almost say impossible—to vote for any withdrawal agreement that contained a backstop whereby in the event of no deal a new border or unacceptable new barriers were to arise between Northern Ireland and mainland Britain. My fear is that come the autumn the agreement on the future arrangements will be fudge, but it must not and cannot be fudge containing the poison pill of that backstop. People voted to leave the European Union; they did not vote to break up the union that underpins our nation.

The doublethink of the December agreement, in which paragraph 49 says one thing and paragraph 50 another, cannot be allowed to seep into the final agreement, but there is clearly a risk that it might. Given that risk, if this House were to pass the amendment in the name of my noble friend, it would seem odd not to pass another one preventing this Government from creating such a border in the Irish Sea or creating new barriers to trade between one part of the United Kingdom and another in the event of no deal. For if we treasure the Good Friday agreement, as we all clearly do, surely we treasure the union just as much. Would it not be odd for Parliament to stop the Government from erecting new borders on the Irish border only to leave them free to erect them in the Irish Sea? After all, this too is government policy, and it would be unacceptable.

However, I argue that now is not the time to do any of this. We should not pass the amendment nor anything else on this sensitive topic for two simple reasons: first, the Bill is one of process; and, secondly, we must remember where the negotiations stand. We are hurtling towards a reckoning. The EU appears to reject the Government’s concept of a free trade agreement, rejects their approach to customs, is insisting on frictionless trade between Northern Ireland and Ireland and is committed to this dreaded backstop as a contingency. Meanwhile, our Government are rejecting membership of a customs union and rightly refusing to accept the EU’s definition of a backstop. As of Monday, this Parliament may be given the power to stop the UK leaving the EU without a deal.

We are approaching a deadlock. The Brexit negotiating chamber is, I fear, beginning to resemble the Little Ease in the Tower of London: so tiny that there is no room to move. As a remainer, I believe that we must honour the referendum result and negotiate an agreement to leave the EU that is in our national interest. The key word in that sentence is “negotiate”. As my noble friend said, in any negotiation there must be compromise. If your Lordships agree on that, it surely follows that we must give the Government room and space to make compromises. The more we put constraints on what the Government can and cannot do in any eventuality, the more it will hinder the Government’s room for manoeuvre.

Rather than put this into legislation, I simply ask your Lordships to think of this. Would it not be better to reserve judgment until we see what the negotiations actually produce? To vote against the amendment is not to vote for a hard Brexit, it is certainly not to vote against the Good Friday agreement, it is simply to vote to give the Government the space they need to negotiate, and then we can and we must decide.