European Union (Withdrawal Agreement) Bill

Lord Goldsmith Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

Moved by

[Lord Goldsmith]

19: After Clause 37, insert the following new Clause—
“Non-regression of EU-derived rights and protections
After section 16 (maintenance of environmental principles etc.) of the European Union (Withdrawal) Act 2018 insert—16A Non-regression in relation to protected matters(1) Any action taken by or on behalf of a Minister of the Crown under—(a) this Act, or(b) any other enactment, for the purposes of or in connection with the withdrawal of the United Kingdom from the EU,is unlawful if it is intended to have, or in practice is reasonably likely to have, a regressive effect in relation to the protected matters.(2) A public authority exercising a function in respect of a protected matter must not exercise that function in a way that is intended to have, or is reasonably likely to have, a regressive effect.(3) Regulations may not be made under this Act if they are intended to have, or are reasonably likely to have, a regressive effect.(4) The protected matters are—(a) animal welfare,(b) biodiversity and the environment,(c) chemical safety,(d) data protection,(e) disability access,(f) employment and social rights,(g) food safety,(h) public health, and (i) transport safety.(5) For the purposes of this section an effect shall be considered regressive if it—(a) reduces a minimum technical standard or level of protection provided for in retained EU law, or(b) weakens governance processes associated with that standard or protection.””Member’s explanatory statement
This amendment prevents Ministers from using powers relating to EU withdrawal to diminish standards or protections in retained EU law relating to a series of ‘protected matters’.

[Lord Goldsmith (Lab)]

My Lords, Amendment 19 is in the name of my noble friend Lady Hayter of Kentish Town. One of the key issues in our debates has been the extent to which the United Kingdom will continue to safeguard the protections of certain rights that derive from EU law. The previous Bill, and assurances by the Government, indicated that protections would remain. The Government have repeatedly stated that, while they do not intend to undercut EU regulations, they want to retain the option of divergence and will therefore now refuse to sign up to level playing field provisions in a free trade agreement. It is time to know, if we can, what that actually means and just what the Government intend.

Just last Friday, the Chancellor, Sajid Javid, told the Financial Times that Britain would never accept ongoing regulatory alignment with Brussels. Ministers are arguing that it is not necessary to sign up to minimum standards, because in most cases the UK already exceeds what is required by EU directives or regulations, but we all know that that is not true in all areas.

The Government are telling us to trust them, even though they stripped out their previous commitments on workers’ rights and parliamentary oversight. As we saw in Committee, they cannot yet define the future relationship they want with a range of the EU’s executive agencies. We have, of course, been promised a ground-breaking new employment Bill, but Ministers will not tell us what its contents will be or set the timescales. We are not certain what engagement has taken place with trade unions and, while there is a need to regulate the gig economy, we need to be certain that this will not water down protections for other workers.

Yesterday, the European Commission briefed EU 27 diplomats on its preparations for the next round of Brexit negotiations. The presentation suggested that the EU will continue to advocate level playing field measures, with future co-operation to be underpinned by a single set of strong enforcement rules. It has been suggested that if the UK breaches any of its commitments under the future trade agreement, it could be fined or lose its preferential access to certain sectors. In response to the comments made by Mr Javid last week, one EU diplomat is quoted as saying:

“In the end it is all rather simple: If Britain wants to diverge from EU rules, it will diverge. Such an approach would obviously lead to new trade hurdles between Britain and the EU and in consequence less trade, less investment, less jobs.”


The Government need to be clear about their intentions. If they want a Canada-style deal, they should be honest with the public about the limitations of that approach. If they want Canada-plus-plus-plus or similar, and the economic and security benefits that a closer relationship would bring, Ministers need to be honest with the public that this will require a greater degree of alignment.

As we know, time is tight. The EU has been clear that it will not even adopt its negotiating mandate until the UK has departed at the end of this month. There needs to be sufficient time left for the ratification of any agreements by national and regional parliaments across the continent. My party has always been clear that it wants a close economic relationship with the EU and that regulatory alignment is not only a price worth paying but would bring benefits to UK citizens. The Government might disagree but, having won the election by promising to get Brexit done, they must now get on with the job of telling people what post-Brexit Britain will actually look like. The purpose of this amendment is to set out the protections that we believe ought to be continued. I look forward to hearing what the Minister has to say about the extent to which assurance will be given on to those protections. For those reasons, I beg to move.

[Lord Fox (LD)]

My Lords, I support this amendment and associate myself fully with the words of the noble and learned Lord, Lord Goldsmith. As such, I can be brief.

Until last weekend, the Government had resolutely maintained a twin-track narrative. Yes, they said, we will have an independent trading policy; yes, they said, we will have frictionless trading with the European Union. Many of us in Committee tried to point out that these would, in effect, be mutually exclusive, and at the heart of this were regulatory standards. Many of us tried to explain that for frictionless trade to take place, a level playing field with the EU 27 means just that: a level playing field with no divergence. The Minister, at his obdurate best, shrugged off those Committee- stage comments.

As the noble and learned Lord, Lord Goldsmith, outlined, the Chancellor, Sajid Javid, broke cover in his interview with the Financial Times at the weekend. He quashed any prospect of the Treasury lending its support to our country’s leading manufacturing sectors. He was very clear, saying:

“There will not be alignment”


and he urged companies to adjust to the new reality, for our automotive, aerospace, pharmaceutical, chemical and food and drink industries, all of which have been clear on the vital need for alignment with EU regulations. Mr Javid added

“we will do this by the end of the year”

which is not long to wait.

Therefore, at least one member of the Government has told the truth and told us where the Government are headed. However, it is simply amazing that any Administration, never mind a Conservative one, should turn their back on these important providers of jobs and prosperity. This amendment would prevent Ministers using regulation-making powers under the Bill to diminish standards or protections related to series of protected matters. That sounds very dry and cold, but those protected matters, specified in the amendment, affect everyone. They include the environment, employment, social rights, animal welfare and public health—really important aspects of the everyday lives of people in this country.

The amendment, so ably moved by the noble and learned Lord, Lord Goldsmith, in essence sets out in writing the aspirations that the political agreement purported to set out. We now know that those aspirations have come to naught. Will the Minister tell us where the Government are headed and what will happen to standards?

--- Later in debate ---

[Lord Callanan]

If it becomes part of retained EU law before the end of the implementation period, it will be transferred into British law by snapshotting the procedure. I do not know the details of that directive, so I undertake to write to the noble Baroness about it.

[Lord Goldsmith]

I thank the Minister for his reply and thank all noble Lords who have taken part in this debate, particularly those—and it is the majority—who supported this amendment. I will just clear one or two matters out the way, from what the Minister said. The first is on the scope of the Bill. There was no problem including protections of this sort in the Bill before the election. It has been revised now, but I do not follow that point.

Secondly, he sees imperfections in the Bill. I have been in government too, and we always have the ability to improve amendments that have been tabled, the substance of which we agree with, to cure that problem. That is not the reason the Government are resisting this amendment. We all know that. The Government are resisting this amendment because they do not want, despite what has been said before, to be committed to non-regression. The point is about non-regression; the clue is in the title. It is about standards being lowered. Of course, they can be improved or changed, as long as, under this amendment, they are not reduced. That is the concern. For some reason—it appears to be ideological purity—the Government are not prepared to give that guarantee.

I was taken by the vignette—the play—of my noble friend Lord Hendy. I have heard him in court before, but it was the first time I have heard him in Parliament. He was as persuasive here as he is in court. But ideological purity risks damaging this country and the people in it. The point made by the noble Lord, Lord Hannay, is that the Government’s insistence on this divergence has caused damage already. We have given the Government the opportunity to give assurances about this. Everyone will read what the noble Lord said in Hansard very closely. We have given them the opportunity to give stronger assurances to the outside world and the workers in it, and the invitation was not accepted. If, as many think, the result will be damage to the country and the people within it, and the rights that people believed were going to be protected, we know at whose door the fault will lie.

I will not press the amendment because there is no point in doing so with the position that the Government are in in the other place. It is clear that they will not accept this proposal or anything like it, but we will continue to hold them to their warm words and will carefully define and interpret them to see how far they go. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Brexit

Lord Goldsmith Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, this is the first full opportunity that this House has had to debate Brexit since the Supreme Court told the Prime Minister unanimously that his Prorogation plan was,

“unlawful, null and of no effect”,

because it had the effect, in their view, of frustrating or preventing the constitutional role of Parliament in holding the Government to account. It is right that this House should have the opportunity to debate where we are because the Supreme Court particularly recognised that this House too had a role in holding the Government to account, part of our responsibility under our constitution.

During the short period since that decision, much has already been said, and I am sure much will be said today by noble Lords and that their words will be wise and informative. We will also have to deal with and comment on the new information that the Minister has just provided, and I will come back to that in a moment. However, I shall concentrate on two particular matters. Assuming that this new proposed deal does not get either support from Parliament or agreement from the EU, what are the Government going to do? That is what I want to spend a few minutes on, particularly on how the Government intend to achieve what they, including the noble Lord, Lord Callanan, have repeatedly said: that they will comply with the law yet still leave on 31 October.

That mantra of compliance has been much repeated, but we still do not know what the Government mean. This will be the third time that I have raised the question in the House. Of course, it is not a question of generalised compliance, or compliance with the law in general, but of how the Government will comply with the European Union (Withdrawal) (No. 2) Act. That is what has been termed by the Prime Minister the “surrender Act”, which is his favoured term. Language is powerful, as the Prime Minister in particular, as an experienced journalist, knows; but that is a misuse of language and a dangerous one, as colleagues have pointed out, particularly in the other place. Language has been a political tool, at least ever since Erik the Red misnamed frozen Greenland to attract more settlers to his new land. This Act in fact surrenders nothing. It is Parliament which, in the Act, has set the date of an extension of three months, which is to be triggered. If the EU accepts that date, then that is the extension. If the EU proposes another date, that has no effect unless Parliament accepts it. So it is Parliament that is in control. If there has to be a nickname for this, other than the Benn Act, the “parliamentary sovereignty Act” would be a more appropriate name.

Let us look for a moment at what compliance with the Act means. It means more than a bare adherence to the minimal interpretation of the words of the law; it means an acceptance, too, of the spirit of the law—what Parliament, what we, intended by the law. So what are the Government actually doing? From all the statements that have been made, it looks as though, if the Government cannot get this deal through, either with the EU or in the other place, they are looking for a way to circumvent the law, to try to find a way round it. We expect more from people in high office. We expect good faith and respect for the spirit of the law. Mr Johnson has impoverished our society and our politics with his unlawful scheme to shut Parliament up. Let us hope that he does not impoverish it further by looking for shoddy tricks or shabby stratagems to get round what Parliament has ordained.

What will the Government do? The internet has been buzzing with different ideas of loopholes and workarounds. There are none. As the former Supreme Court Justice, Lord Sumption, said on the BBC, the courts disfavour finding loopholes. The earliest of the “loopholes” suggested was that the Prime Minister could accompany the letter of request that he is obliged to send with another letter saying that he does not want an extension at all. However, that would clearly be contrary to the Act. The Act requires that he should “seek an extension”, and you do not seek an extension if, at the same time as asking for it, you say, “Please don’t give it”, or keep your fingers crossed behind your back, as in the playground. This is not playground politics.

My first question to the Minister, when he winds, is on what reassurance he can give about what the Government plan to do in the event that this new proposal does not meet favour with the EU or with the other place. Let me spell out the question more clearly so that there is no room for misunderstanding or, forgive me for saying so, evasion. The Government say that they will comply with the law yet leave on 31 October. The Act allows two ways in which that can happen. First, if, by 19 October, a deal has been agreed with the EU—it will have to be this deal, according to what the noble Lord has said—which the House of Commons has approved and, indeed, this House has debated too. Or, if the Commons has agreed that we can leave without a deal and, again, this House debates that question as well. The clear question becomes: if, by 19 October, neither of those things has happened—there has been no agreed and approved deal and the House of Commons has not agreed that we can leave without a deal—will the Prime Minister “seek to obtain” an extension under Article 50(3), as the Act requires? Secondly, and importantly, will the Government agree not to undermine the request by second letters or other messages or statements which contradict the request?

One of the most disturbing suggestions that we have heard in recent days is that the Government could rely on the Civil Contingencies Act. This is the second “loophole” that I want to mention. That would mean using the powers in the Civil Contingencies Act to override or indeed revoke or set aside the Benn Act. There are a number of reasons why that would be wrong. First and foremost is because the great powers that do appear in the Civil Contingencies Act only arise if there is an “emergency”. That arises only when the Government are satisfied that,

“an emergency has occurred, is occurring or is about to occur”.

According to the Act, “emergency” means,

“an event or situation which threatens serious damage to human welfare … in the United Kingdom”,

or in a part or region of it. It would still be necessary to show that urgent provision has to be made to address that emergency. Noble Lords will agree that that situation does not apply at the moment. However, the suggestion that this Act might be employed is worrying, because if civil unrest or riot, or the prospect of them, were invoked, the Government might then claim that the statutory conditions to revoke the Benn Act were in fact in existence. It is a worry that some Ministers appear to be talking up the risk of unrest, perhaps precisely with that intention in mind. That would be cynical and unlawful.

Another idea which has been floated, and apparently attributed to the Foreign Secretary, is that the Benn Act somehow conflicts with EU law. There is a lovely irony in the Government relying on EU law to get out of this particular problem. However, I do not understand the argument at all. It is no way inconsistent with Article 50 to ask for and agree extensions to the leaving date. That is what we have done at least once already, and it is fully consistent with Article 50. All the Benn Act does is require that a request for an extension is made if certain conditions are fulfilled: namely, that the Government have not persuaded the other place to agree to a deal that they have reached or to agree that we can leave without a deal. What is more, although I do not think it arises, Article 50 requires our notice to leave to be given in accordance with our constitutional traditions. That is what has happened. If it further required that extensions should be requested in accordance with those traditions, that has happened too, because it is pursuant to an Act of Parliament passed by both Houses that the Prime Minister will be required to make this request.

I will not deal with other suggested loopholes, save to say that all, in my view, are wrong. However, even though they are wrong, dealing with such arguments will take time. The worry is that the Government will run down the clock so that there is inadequate time to get decisions from either Parliament or the courts. Therefore, I am not surprised to read that other legal actions are already being planned. Clear answers from the Government today could help to render those unnecessary, so we look forward to hearing what the Minister will say in winding up.

The second issue I will raise—the Minister touched on this in his remarks, but I want to probe him a little further—is what the consequences of a no-deal Brexit would be. If the House of Commons is to approve a no-deal Brexit, clearly the Government are under an obligation to give full, frank and honest advice about the consequences for the British people. How do they intend to do that? We started with the leak of Operation Yellowhammer documents. Will the Government update and release the results of that inquiry? If so, when? We need to know.

I turn now to the subject of the Minister’s opening remarks. Of course, the third important issue is what new terms of the deal there are. If the Government can persuade the EU and the other place to accept those terms, that is one thing. They, and we, will need to examine them closely. During the course of today, others will no doubt comment on them. I want to make some brief initial comments. First, it is telling that this statement is released just as the Conservative Party conference comes to an end. The result of that was that the Prime Minister did not have to debate its contents and merits with the conference itself, which might have been a difficult job. It also means that we and the other place have less time to deal with it. Secondly, as noble Lords will recall, there was a commitment that there would be no more infrastructure or physical checks on the Irish border. I am not at all clear from reading and listening to the Minister whether that is in fact what these proposals will do. That needs to be probed as we go through this. Thirdly, it also seems that this provides for separate regimes for Northern Ireland and the rest of Great Britain. Again, the Minister will no doubt confirm that remark, or otherwise. That is a very important consideration which has been a terrible problem for many people in the past.

Those issues will need to be examined. I will say no more about them at this stage, but I have no doubt other noble Lords will during this debate, including my noble friend Lady Hayter. I am glad to hear—and for this I thank the Minister—the announcement that a Statement will be made tomorrow. The usual channels will have to consider how long to allow for that Statement, as I imagine many noble Lords will want the opportunity to speak to it.

--- Later in debate ---

[Lord Hamilton of Epsom]

Because I do not know what went on in the previous discussions of the Supreme Court; I was not there. All I am saying is that it is very strange that the conclusion the court came to was completely unanimous. This is very odd.

[Lord Goldsmith]

Perhaps I could help the noble Lord. The Supreme Court judges said they were all of the opinion that parliamentary sovereignty was what was at stake. As they made very clear, they were not taking a decision for or against Brexit. They were talking simply about the role of Parliament, and how wrong it therefore was for the Prime Minister to stop Parliament sitting. I do not see any difficulty at all in seeing why they all took that opinion. I entirely agree with the noble Lord, Lord McNally. To suggest something improper about our Supreme Court, as the noble Lord was, is absolutely inconsistent with the rule of law and the role we should take.

[Lord Hamilton of Epsom]

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

European Union (Withdrawal) (No. 2) Act 2019

Lord Goldsmith Excerpts

Thursday 26th September 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I thank the noble Lord for repeating that Statement. I have one question to put to him. He used the formula that the Government will obey the law. I think he used exactly the same formula a number of times in answering questions yesterday. Many people would like to know what the Government think the law is. In particular, do the Government think that it will be complied with by sending a letter, as set out in the Act, and then sending another letter or message in some way saying that we do not really want an extension?

I remind the noble Lord of two things. First, saying what the Government believe the law to be is not the same as saying what legal advice they have received. There is no reason not to tell this House what the Government believe the law is. It is long-standing that that position has been taken. Secondly, the Act requires that the Prime Minister must seek to obtain an extension from the European Council under certain circumstances. All noble Lords would like to know whether, if those circumstances arise, the Prime Minister will seek to obtain an extension—and not with his fingers crossed behind his back or by sending another letter or secret messages to his friends saying: “Please don’t give it”. To seek to obtain means to seek to obtain. It needs to be done in a way which complies fully with the spirit of the legislation passed by this House and the other place. Is that the Government’s view and if not, why not?

[Lord Callanan]

The noble and learned Lord is a distinguished lawyer. In fact, there are a lot of distinguished lawyers in this House. Some may say that there are too many, but nevertheless we have lots of distinguished lawyers and I am not a lawyer. I repeat yesterday’s statement that the law officers made in another place: we will always comply with the law. There are a lot of potential outcomes, and no doubt the Government will wish to consider them all carefully when it comes to it, but we will comply with the law.

European Union (Withdrawal) (No. 6) Bill

Lord Goldsmith Excerpts

Report stage (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

Perhaps it would be helpful for the Committee if I said a few words about the amendment. Both my noble friends Lord Forsyth and Lord True are essentially correct, except in one important detail. I should say to my noble friend Lord True that even if the rest of the Committee does not want to hear from him, I do, because he speaks a lot of good sense on these issues.

It is true that initially, during the fast-moving events at a late hour on Wednesday evening, it was our intention to ask the House to remove this amendment. However, since then we have looked at it further. My noble friend Lord Forsyth said that the Government do not support this Bill and do not favour it. We think it is flawed and that this Kinnock amendment tries, but does not succeed, to make it even worse. The amendment is confusingly drafted, is contradictory to the aims of the rest of the Bill and its deficiencies are such that its effect is rendered pointless.

I always hesitate to disagree with my noble and learned friend Lord Mackay but my strong advice is that this amendment is legally inoperable. It appears contradictory with other parts of the Bill because it requires an extension to pass legislation to implement a deal, when, under this Bill, the extension is being sought only because no deal has been agreed.

For all those reasons, as I have said, we think it is inoperable and largely pointless. I am happy to say that it was our original intention to take it out—we had discussions to that effect and so my noble friend Lord True is correct, as always—but since then we have looked at the matter further.

[Lord Goldsmith (Lab)]

My Lords, I am grateful to the Minister for helping the Committee at this stage by explaining the Government’s position. We do not support the amendment. In short, given that the Minister has said the Government’s view is that the Kinnock amendment is legally inoperable, it does no harm to keep it in the Bill. I do not know why noble Lords are laughing because the critical point, which was made by the noble Lord, Lord Cormack, is that the Bill has to pass. We do not have time to send it back to the House of Commons given the guillotine of prorogation imposed by the Prime Minister.

[Lord Rooker (Lab)]

My Lords, in principle, the noble Lord, Lord Forsyth, makes a seductive case—in principle. The noble Lord, Lord Cormack, made the point that the House of Commons might want to look at it again. I do not see any contradiction in the fact that they have rejected the agreement three times. It is their choice—the meaningful vote is theirs, not ours—and it is a soft Brexit. It is Brexit in name only—there is no question about that. They are free at any time they want in the Commons to fix their business to do it. It is nothing to do with us because we are not part of the meaningful vote process. It is not our job to manipulate the way they organise their business on an issue that we have nothing to do with.

It grieves me that we cannot do our proper scrutiny. There is a breakdown of trust because the Government say that there will be time in the Commons on Monday to deal with this Bill. Any amendments sent down there can be amended and something in lieu can come back. Forget the idea that this is a sound deal. Trust has broken down; the prorogation guillotine is there; we have no choice. I therefore ask the noble Lord, Lord Forsyth, to withdraw his amendment.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Oh my goodness. I have to say to the noble Lord, Lord Rooker, for whom I have great admiration, that I am struggling with that response because the words say that a letter should be sent by the Prime Minister requesting an extension in order not just to debate but to debate and pass a Bill. He has to send a letter saying he wants an extension because he is planning to pass a Bill to implement the May agreement, which has been rejected three times—the noble Lord, Lord Rooker, is absolutely right—and put in place the results of the discussions, on which I do not have information, other than what I have read in the newspapers. That is anticipating the decisions by the House of Commons.

My noble friend Lord Cormack said that he supported the May deal and that there are many people who supported the May deal, but the May deal was rejected by the biggest vote ever in the other place. The noble Lord, Lord Brooke, made a very good point about the political agreement and having discussions. He may be right in his criticism that not enough has been done to take that part of the thing forward. Taking out this defective part of the Bill does not prevent discussions taking place.

My noble friend Lord Hamilton made a crucial point that if this provision is deficient—and everybody agrees that it is deficient—what is this House for if not to deal with those matters? The noble Lord, Lord Rooker, said there is a matter of trust. I am most grateful to my noble friend Lord Callanan for his honesty and transparency. We were under the impression that the deal agreed between the Front Benches would result in this matter being taken out—he has confirmed that—and we are now being told that it is not being taken out because the legal advice is that it would not fly anyway, so we put into the Bill something which is legally deficient; that is okay, and that is what this House has come to. We do that because we do not believe that the Government will be as good as their word when the people who were on the other side of the agreement have not been as good as their word. I hope that the Government are rather better than that. We have a duty to pass legislation which is proper. I am not a lawyer, but the noble Lord, Lord Marks, told us that it would have no legal effect whatever, and my noble and learned friend Lord Mackay of Clashfern—not Drumlean —gave us the opposite advice, so it would appear that there is at least some doubt about whether it would have legal effect.

My noble and learned friend Lord Mackay said it was not meaningless and the noble Lord, Lord Marks, said he agreed that—I hope I am not pushing too far here—it should not be there but because it is meaningless, it could stay there. The noble Lord, Lord Jones, told us that the entire country is sick to death of all of us. On that, I am sure we can all agree.

[Lord Goldsmith]

I am going to ask the noble Lord this question because he has questioned the comments that have been made about trust. In that context, does he want to comment on what the Prime Minister said this morning, which was that he will not seek an extension even if it is passed in law? Does that change his view on whether a question of trust is at play here?

European Union (Withdrawal) (No. 6) Bill

Lord Goldsmith Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Callanan]

The reason I used that form of wording is that one of the original proposals was that we would guarantee that it would receive Royal Assent. Obviously, we cannot speak on behalf of the Palace so we merely said that we would enable it to be sent for Royal Assent. I think the original guarantee that we were asked for was that it would receive Royal Assent by Monday evening. We could not give a guarantee because obviously that depends on the ability of Her Majesty, so we will send it for Royal Assent if it becomes an Act.

[Lord Goldsmith (Lab)]

But of course it would be open to Her Majesty’s Ministers to advise her to give Royal Assent, and I assume that is what would happen. Can that be confirmed?

[Lord Kerr of Kinlochard]

May I repeat to the Minister the question that Mr Marr put to Mr Gove? Will the Government act on the law of the land if this Bill becomes an Act and receives Royal Assent?

--- Later in debate ---

[Lord Goldsmith]

My Lords, I agree with the noble Lord, Lord Kerr, who said that it is a privilege to be a Member of your Lordships’ House and to participate in debates such as this. I would make the point that I have said that before, but I am worried about being accused of dementia by the noble Lord, Lord Patten of Barnes, for repeating my previous speeches. To listen to this debate today and the contributions from such distinguished former civil servants—we have heard from the noble Lords, Lord Wilson, Lord O’Donnell and Lord Butler of Brockwell—has been extraordinary. The quality of contributions has been inordinately high, as has the thoughtfulness of the debate. We have been debating this now for six hours. Over 40 speakers, without any form of compulsion or even a speakers’ list, have been able to make contributions. That is a very adequate way to allow this House to consider the Second Reading of the Bill. In light of what was said yesterday, that is important to note.

The Bill is simple but necessary. It essentially stops no deal, but not altogether. I want to make that clear. I can see the noble Lord, Lord Callanan, shaking his head enthusiastically at this prospect, because it allows no deal if the House of Commons can be persuaded to pass a Motion in support of that. Let me come back to that. The Minister will obviously add what he wants to on it. It is necessary, because there is a real concern, referred to by a number of your Lordships, over a lack of trust in the Government and that, unless they are constrained, the Government will allow us to crash out never having approved a final deal or it not having the approval of the House of Commons.

A number of your Lordships referred to the dangers of crashing out without a deal, and we have talked about this on a number of previous occasions in this House. On the whole, this House has clearly indicated its view that leaving without a deal would be detrimental. Today we heard the noble Baroness, Lady Bull, and the noble Lord, Lord Bilimoria, on the risk to the economy. On security and the union, we heard powerful and compelling speeches on Northern Ireland from my noble friends Lord Mandelson and Lord Hain and the noble and learned Lord, Lord Mackay of Clashfern, and on important aspects from the noble Lord, Lord Empey, and others. On Wales, we heard from the noble Lord, Lord Wigley, and others. As to the risk to young people and disadvantaged persons, we heard from the noble Earl, Lord Listowel, and the noble Baroness, Lady Bull.

These are the risks that we want to see avoided. The criticisms of the Bill from the noble Lord, Lord Howard of Lympne, in particular, are that it distorts our normal process of the separation of powers. I think he has a rosier view of the separation than I do, but let us be clear; this does not prevent the House of Commons, which is the legislature, giving its approval or non-approval to an event, but says that that is necessary before we could leave without a deal—or that an agreement has been reached.

It is also to be noted, given what has been said about hampering the Prime Minister in his negotiations, that the Bill is clear that not until after the European Council meeting on 17 October does the moment come when, if he has not reached a deal or obtained the consent of the House of Commons, he has to ask for an extension. Clause 1(3) does not trigger the need to ask for an extension until 19 October. In those circumstances, that particular element of concern is met.

I return to a point made by a number of noble Lords: the lack of trust in the Government, which has resulted in a Bill which is more constraining than one might have hoped to see. I must say, as many other noble Lords have, that what has happened on Prorogation is deeply concerning. It was deeply concerning when it was said that Prorogation had nothing to do with Brexit when it was plain to all of us that it had everything to with it. We did not need to see the documents that have been revealed in the Scottish case to know that. Now that we have seen them, however, we know that completely.

What is more, we know that the decision was made in the middle of August, at a time when it was not revealed to the House of Commons, this House or the public—or, apparently, to the Cabinet. Maybe I am wrong to see a sinister approach in that, but that sort of concern means that this House is entirely justified. The other place, whose Bill we are following, wants in the light of that lack of trust to make sure that this does not happen without either an agreement or the other House giving its approval.

It has been said that this will not solve the problem a number of noble Lords have raised. That may well be right, but it solves an immediate problem: the risk that we will find ourselves with a clock tick-tocking down to 31 October, not actually having a deal or even seeing any negotiations for a deal going on. That worries a lot of us as well. I think it was the noble Lord, Lord Krebs, who first raised the point in an intervention that the Prime Minister had said that he needed, or was happy to have, 30 days to come up with alternative arrangements. The clock tick-tocked, and we did not see what those arrangements were. We still have not seen what they are. In those circumstances, to say that Parliament is right to insist on a clear set of rules for what will take place seems absolutely what we should do.

One of my few regrets about the debate concerns what happened yesterday, partly because we spent a lot of time with bitterness and rancour, which we do not want to see in this House. However, particularly due to the efforts of my noble friend Lady Smith and the Government Chief Whip, we came to an agreement that we can all be happy with. That is important.

I was a little saddened because, at the beginning of that debate, there was confusion between me and my noble and learned friend Lord Falconer of Thoroton. Normally, it is extremely flattering to be confused with him—I make that clear—but statements were made in the context of complaining that I had previously said things that I now appear to be disagreeing with by having made strong statements against the kind of Motion that was being put forward. I was cut by that—but not quite as cut as I was by a young French waitress recently when I was on holiday with my family, my children and their friends. They wanted to know, because there was a casino attached, what the age limit for the casino was and the young woman said to me, “There’s no maximum age limit”. Your Lordships may be relieved to know that that reassured me and I can provide the address of this excellent establishment, if noble Lords would like, afterwards.

The fundamental point is that we support the Bill. We are grateful to the other House for having sent it to us and to my noble friend Lord Rooker for putting it forward. We will have Committee, Report and the remaining stages of the Bill tomorrow. It would be good if the noble Lord, Lord Callanan, when he winds up for the Government, could repeat the assurances he gave during the debate that the Government will accept the Bill and make sure that it is in a position to get Royal Assent. As I suggested in an intervention, I hope they will advise Her Majesty to give Royal Assent. I accept that they cannot promise what Her Majesty will do, but they can give advice. We all know that the convention is that if advice is given, the monarch will follow it. I also hope that, as one noble Lord suggested, they will follow the spirit. We do not want to see any tricks, any shifting, any dodging about—whether that comes from Mr Dominic Cummings or anyone else—to get around this. If this House and the other House have said, “This is what should happen; this should be the Bill”, I hope that will be enforced and respected in the letter and in the spirit.

Given the length of the debate—I apologise that I have not referred to the excellent contributions of a number of other noble Lords—I urge my noble friend Lord Rooker to ask the House to give this Bill a Second Reading, and we will support that.

--- Later in debate ---

[Lord Goldsmith]

I am just thinking through the implications of what the noble Lord has been saying. I have been hearing and reading that the Prime Minister has said he is negotiating and that the negotiations are going very well. I took that to mean that something was being discussed that he thought might be acceptable, not just the existing withdrawal agreement, and he jumped at the idea put to him by Angela Merkel of coming up with alternatives in 30 days. Is he now telling us that if the Bill passes, the Prime Minister will decline to negotiate any further? Is that the Government’s position?

[Lord Callanan]

No, that is not what I said at all. I am saying that it makes the Government’s position very difficult to persuade the EU to do any kind of alternative deal because all the other options remaining on the table are perfectly acceptable to it. In our view, as I said, the Bill would wreck any prospect for a renegotiated deal ahead of 31 October. It clearly would not honour the referendum result. It would be another pointless and harmful delay and would continue to contribute to the rancour we are experiencing in this House and in the public debate generally. It will come as no surprise to noble Lords whatever that the Government cannot support the Bill. I urge all noble Lords across the House who are committed to leaving the EU and to respecting the referendum to therefore vote against it.

European Union (Withdrawal) (No. 5) Bill

Lord Goldsmith Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I take the place of my noble friend Lady Hayter today. She, like my noble friend Lord Rooker, is not able to be here.

To those, including the noble Baroness, Lady Neville-Rolfe, who have said we have to ensure there is not a precedent, I say that of course this is not a precedent, because the circumstances are exceptional. They are exceptional because, unless something is done, we risk leaving the European Union without a deal on Friday. It is in these circumstances that the other place took the decision that this Bill should be presented to us; we have been dealing with it. As I said at the conclusion of Second Reading, I very much hope we will be able to conclude it in time today.

As this is the first time I have spoken, I add my thanks to the Chief Whip for the work he did on Thursday to enable us to get to this stage. I remind noble Lords that we need to get to the end of this Bill, as he has said.

[Lord Hamilton of Epsom (Con)]

If the circumstances are exceptional, why does that mean it has not created a precedent?

[Lord Goldsmith]

I think it speaks for itself. We have not found ourselves in this sort of situation before. Others in the House can deal with this, if they would like, through the Procedure Committee later.

So far as the amendment itself is concerned—

[Lord Forsyth of Drumlean]

Could the noble Lord help us understand what the word “exceptional” means? On Thursday we had five closure Motions, where the Lord Speaker had to read out a text that says this should be used only in the most exceptional circumstances.

[Lord Goldsmith]

That was the view the House took on each of those closure Motions.

To deal with the substance, we oppose the amendment, essentially for the reason put forward by the noble Lord, Lord Pannick—that we should not send this Bill back with constraints on the other place. What will then happen is for the Prime Minister and the other House to determine, but I urge the noble Baroness not to press her amendment.

[Lord Howard of Lympne (Con)]

The noble Lord says we should not put constraints on the other place when we consider these amendments. Has not the argument been put forward many times from the Benches on which he sits that we should take into account the extent of the majority in the other place for any legislation we are considering? I cannot recall a narrower majority than the one by which this Bill was passed in the other place.

[Lord Goldsmith]

I will not attempt definitions of words; I am a lawyer, not a grammarian.

[Lord Patten of Barnes (Con)]

The Government distinguished by the leadership of Lady Thatcher came into office on the basis of one vote, as I remember. All of us, including my noble friend—and he is a friend—benefited from that.

--- Later in debate ---

Moved by

[Lord Goldsmith]

5: Clause 1, page 1, line 21, leave out subsections (6) and (7)

[Lord Goldsmith]

My Lords in moving this amendment, with the permission of the House I will also comment on Amendment 7 because the two are connected. I start with two realities. The first is that the most important purpose of this Bill is to ensure that we do not crash out or leave on Friday without a deal. It is critically important, therefore, that an extension is agreed before Friday. The second—

[Lord Framlingham]

My Lords—

[Lord Goldsmith]

I will not give way because the noble Lord has not even heard what I am trying to say.

The second point is that it is very clear that we are running out of time—or running out of road, to go back to the Question in Oral Questions. If we can pass the Bill today, as I explained at the conclusion of Second Reading, it can return to the other place and be agreed and a Motion can then be passed to inform what the Prime Minister does on Wednesday.

When the Prime Minister puts forward a resolution, it may be agreed by the other place but other possibilities arise. One is that the request is put to the Council but the Council comes back with a counter proposal—a different date. I doubt from my experience of European negotiations that it will be quite as neat as that, because these things tend to happen in discussions and something will emerge. That will be important when I come to explain one issue about the Bill as it stands.

The point was also made powerfully at Second Reading that it is necessary to give the Prime Minister the flexibility to be able to agree to something put to her by the European Council if that emerges in the course of debate. Amendment 7 in the name of the noble and learned Lord, Lord Judge, the noble Lord, Lord Pannick, the noble Baroness, Lady Ludford, and myself is designed to deal with that possibility. There was strong support at Second Reading for being able to use the royal prerogative so that the Prime Minister would be able to make such an agreement. Amendment 7 would enable that to take place and avoid a situation where we might accidentally end up with no deal because there simply has not been time to go through all the processes.

So what does that have to do with this amendment? This amendment would remove subsections (6) and (7) of Clause 1, which would require a Motion being put to the other place in the event that the European Council comes up with a proposal. The reason for removing those subsections is twofold—for simplicity and to promote legal certainty. It promotes simplicity because it does not require there to be another stage of backwards and forwards in the very limited time before Friday. If the proposal had to go back to the other place and be agreed and then something was then put forward, we could find ourselves in a situation where we accidentally dropped out of the European Union without having reached the point that we wanted to.

[Lord Framlingham]

My Lords—

[Lord Goldsmith]

I will give way to the noble Lord, but this will be the last time.

[Lord Framlingham]

It may be the only time I ask. The noble and learned Lord started his remarks by using the phrase “crashing out”. Everybody talks about crashing out. The BBC talks about crashing out. Sky News talks about crashing out. It has been part of the propaganda all along. Precisely what problems will be caused if we leave this coming Friday?

[Lord Goldsmith]

I respectfully invite the noble Lord to read fully the debate at Second Reading, where that was explained by a number of noble Lords.

Amendment 5 would take out subsections (5) and (6). The first reason to do that is to avoid the problem which could result in us running out of time; that is, the matter having to go to the other place and then come back. We have the safeguard that that amendment would require that the extension agreed by the Prime Minister could not end earlier than 22 May 2019. That is an important part of the amendment that is about to be proposed. We are safeguarding ourselves against leaving without a deal.

Legal certainty comes into it for several reasons. First, if noble Lords look at the Bill, they will see that subsection (6) refers to the condition in subsection (7) being operated because,

“the European Council proposes an extension of the period specified in Article 50(3)”.

There may be a question about whether there has in fact been a proposal.

[Viscount Hailsham (Con)]

If the noble and learned Lord’s Amendment 5 is carried and Amendment 7 is carried as well, is it not possible for the Prime Minister to agree a date which is never subject to parliamentary ratification?

[Lord Goldsmith]

So far as domestic law is concerned, in any event there will need to be a statutory instrument to change the exit day. I accept that in relation to domestic law, and we have had the debate about international law. A Motion will be put to the other place, which will have a full opportunity to express its views about the date, and in that way it is the subject of careful consideration. We accept that the Prime Minister needs the flexibility to be able to agree what is proposed by the European Council. The mood music we hear, if we read what is going on in the press, seems to be much more that we are likely to find that there is some meeting of minds—that there is some accommodation from the European Council—and I am less concerned about that. I am concerned about the risk of legal uncertainty, which I was just explaining.

Part of it is that we may find it difficult to be sure whether the condition in subsection (6) has been satisfied. It requires that the European Council has proposed an extension, but that may not be the way it works because in discussion and negotiation it may be questionable whether the proposal has come from the European Council or from the Prime Minister herself in the course of negotiations. Secondly, if the condition is triggered, under subsection (7) the Prime Minister must move a Motion in the House of Commons in the form set out in subsection (2) stating that that House agrees to the Prime Minister seeking an extension. How is this going to work in circumstances where as a result of a negotiation the Prime Minister has in effect reached an agreement with the European Council about what the extension should be? How does she then receive an instruction to agree a date that has already been agreed? It creates those difficulties of legal certainty.

--- Later in debate ---

[Lord Goldsmith]

I give way to whoever would like to speak on the opposite Benches.

[Lord Faulks]

I entirely agree with the noble and learned Lord that it is most important that there should be as much legal certainty as there can be, but also that the Prime Minister should have the proper role and authority to negotiate. However, does he agree that the royal prerogative exists to allow the Prime Minister to negotiate on our behalf in international and foreign relations unless Parliament actually restricts that authority? That of course was the subject of the Gina Miller case and the reason behind that decision. If we say nothing about the restrictions on the Prime Minister, she will be able to rely on the royal prerogative.

[Lord Goldsmith]

The noble Lord is quite right that that is a very important point. It was raised at Second Reading that the Government felt strongly, and I understand why, that the royal prerogative should not be subject to at least inadvertent erosion. Of course it has been eroded in certain respects over the years; we do not need to go into what they are but they include treaty making and waging war.

I take from the noble Lord’s point this observation: one great benefit of the amendment proposed by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, is that it makes clear that the royal prerogative is being maintained. I want to avoid seeing that apparently contradicted by other provisions in the Bill.

I have one other observation to make. I said a few moments ago that there were certain things that could happen: the European Council might accept the proposal or it might come up with another one. However, there is a risk that there might be no agreement at all; that needs to be considered. We have had discussions with the Government. I look to the noble and learned Lord, Lord Callanan—I am sorry, the noble Lord. He should be noble and learned as he has had to deal with so much of this Bill already; we will see if we can arrange that. I anticipate that he will give an assurance that, in the event that there is no agreement, the matter will be brought to the other place as soon as possible. Indeed, we expect it to be brought there this week, otherwise it might simply be too late.

When the noble Lord comes to respond on this amendment, I look forward to hearing what he says about that, and I hope he will give us sufficient assurance that if there is in fact a failure to agree at the European Council meeting then the matter will come back to the other place, which will therefore be able to debate what should happen next. It should do so on an amendable Motion so that it can put forward and support its view on what should take place. I do not know whether it would be for the convenience of the House if the noble Lord could tell us now what he will be able to say but, if not, I look forward to hearing what he says when he comes to respond to the debate.

[Baroness Deech (CB)]

My Lords, I tabled Amendment 6.

--- Later in debate ---

[Lord Pannick]

This is a negotiation. It would be very odd to say that she can agree a date but she cannot seek one. There has to be give and take. I think that there is general agreement around the House that the Bill, whether noble Lords are in favour of it or not, ought not to constrain the Prime Minister’s powers when she is conducting an international negotiation.

The noble Lord, Lord Faulks, asked whether this was really necessary: unless an Act of Parliament expressly takes away the Prime Minister’s prerogative powers, surely they remain. My answer is that there is a danger that it might be said that the Bill, by necessary implication by reason of its contents, takes away the Prime Minister’s prerogative powers. I think we would all agree that the worst of all possible worlds would be if the noble Lord, Lord Faulks, on Thursday morning was to be instructed by a client to go to court to obtain a declaration that the Prime Minister has acted in breach of her powers, given the Bill’s contents.

[Lord Goldsmith]

If I may assist, Clause 1(4) would require the Prime Minister to seek an extension of the period required by the House of Commons. We are then dealing with what happens after that.

[Lord Pannick]

I entirely accept that.

It is necessary to have legal certainty on the retention of the Prime Minister’s powers on such an important matter. That is why the noble and learned Lords, Lord Judge and Lord Goldsmith, the noble Baroness, Lady Ludford, and I have all put our names to Amendment 7.

--- Later in debate ---

[Lord Faulks]

The noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, have helpfully identified a problem with the Bill, in that a counterproposal by the EU could fall between the cracks and result in an accidental no deal, thus frustrating the will of Parliament, in so far as that will is ascertainable.

In the event of a counterproposal, which seems likely, the amendment suggests that the Prime Minister has the power to seek or agree an extension to a date not earlier than 22 May. At col. 337, the noble Lord, Lord Pannick, suggested that approval would still have to be sought for that new date.

I wholly understand the thinking behind the amendment, but the apparent need for it underlines the strange constitutional waters in which we are now swimming. My understanding of the Gina Miller case is that the Government argued that Article 50 could be triggered without parliamentary involvement, whereas the opposing argument, advanced by the noble Lord among others, was that Parliament had legislated in such a way that the royal prerogative was enough on its own and that Parliament need not be involved. By a majority this argument prevailed, although there were three dissenting speeches.

The prerogative, however, allows Ministers, and in this case the Prime Minister, to make or unmake treaties unless Parliament has legislated to restrict that power. It rarely does, hence the paucity of useful precedents in the Gina Miller case. It seems to me that the Prime Minister would be allowed to agree a counterproposal as a matter of law. Whether that would be politically sound is a different matter.

The response of the noble Lord, Lord Pannick, is that it is or might be uncertain, but it seems to me that this amendment in fact fetters the royal prerogative. We have a dualist system of law in this country, which has worked well, and I wonder if it is wise to undermine the royal prerogative in this way. To make a constitutional change of this sort needs prolonged and serious thought. A Private Member’s Bill that went through all its stages in the House of Commons in four hours, that was not given pre-legislative scrutiny and that, for good reasons, is hurrying through this House, is surely not the context in which to make significant constitutional changes.

[Lord Goldsmith]

Could the noble Lord enlighten me, at least, as to which amendment he is referring to?

[Lord Faulks]

I am referring to Amendment 7.

[Lord Goldsmith]

Amendment 7 does not fetter. It actually says the opposite.

--- Later in debate ---

[Viscount Hailsham]

My Lords, I will make a brief intervention in the hope that the noble and learned Lord, Lord Goldsmith, will respond to it. I entirely understand that in negotiations—the noble Lord, Lord Pannick, described the situation in which the Prime Minister and the EU are negotiating—there has to be give and take. What disturbs me is this: the Prime Minister might decide in advance to move outside the dates previously agreed by Parliament and go with an entirely fresh date into a negotiation. That is different in kind from negotiating when they sat down to discussion. It would be a deliberate attempt to go outside what Parliament has previously agreed to. It seems to me that Amendment 7 would enable her to do that, and I am profoundly uneasy about that prospect.

[Lord Goldsmith]

My Lords, I will respond on my Amendment 5, which is the one that has been moved. A couple of points need to be emphasised.

As has been discussed already, we are in unusual circumstances, and they demand some unusual responses. This Bill does not take away or give back the entirety of the royal prerogative. It says—this is why I made an intervention earlier—that it is for the other place, on a Motion put forward by the Prime Minister, to say what date she should seek. It may be that the European Council will accept that date, in which case it is done so far as the negotiations are concerned. It may come back with a different date, and the questions we have been considering are for those circumstances. Does she have to seek approval during the next two to three days before she can respond to it, or is she able to respond by agreeing to it or by putting forward a slightly different proposal?

There are two different amendments—my amendment would remove the fetters requiring her to come back, and that of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, would enable her to reach an agreement without having had that prior approval. It seems to me that a balance is being struck between royal prerogative and necessary control by Parliament. It is absolutely the case—as the noble Lord, Lord Faulks, said—that of course the royal prerogative can be adjusted and amended by what Parliament says. On this occasion, the other place has said: “We believe that we should tell the Prime Minister what date she should seek. What happens after that will depend upon the circumstances but, whatever it is, it has to be done in this time”.

I invite the House to agree Amendment 5 and then we can move on to the other amendments.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

As the noble and learned Lord, Lord Goldsmith, was kind enough to point out, I have not benefited from the disadvantages of a legal education, but I think I know flawed and badly drafted legislation when I see it. Nevertheless, it remains the reality that this has been approved by the House of Commons, and that is a principle that I believe should be respected. Noble Lords opposite can be assured that I will remind them of their newfound enthusiasm to respect the will of the House of Commons when we come to future legislation.

I will comment first on the amendments. As my noble friend the Leader of the House said, the Government support Amendment 5, moved by the noble and learned Lord, Lord Goldsmith. This seeks to remove Clause 1(6) and (7) from the Bill. As currently drafted, should the European Council propose a different date to extend Article 50 from that agreed in Parliament by virtue of approval of the Motion as set out in the Bill, the Bill would require the Prime Minister to return to the House of Commons on 11 April and put the EU’s counterproposal to that House for approval through a further Motion. As the Government set out last week, we have very real concerns about how that would work in practice.

The Government hope that Amendment 7 will also be successful, which would allow us to reach agreement with the EU on Wednesday, so long as that extension ends no later than 22 May. The Government have been clear, as I said earlier, that we are seeking an extension to 30 June.

In response to the question posed by the noble and learned Lord, Lord Goldsmith, and the noble Baroness, Lady Ludford, scheduling of any further debates after the European Council on 10 April is a matter for the other place. I am sure it is paying close attention to our debates.

[Lord Goldsmith]

I think the Minister said, in relation to the date, “not later than 22 May”. It should be “not earlier than 22 May”. Perhaps he can confirm that. It is obviously a very important difference.

[Lord Callanan]

Yes, I take the noble and learned Lord’s point. He is right on that.

As I said, I am sure that the other place is paying close attention to our debates and will address this when the Bill returns to the House of Commons for further debate this evening.

--- Later in debate ---

[Lord Lisvane]

I should be happy to do so. The Convenor of the Cross Benches, the noble and learned Lord, Lord Hope of Craighead, has helpfully drawn attention to the possible uncertainty that might arise were the negative procedure to be kept in place and were there to be a successful Motion for annulment of the instrument that was made under that provision. I suggest that that is an additional argument for returning to the affirmative procedure.

[Lord Goldsmith]

My Lords, this has been a difficult matter to determine, but the priority as I see it remains ensuring that this can be done in time. That is the concern. I do not want to be disagreeable at this point in the debate, but we all know that the Prime Minister knew last December that the deal that she had done would not pass, but we find ourselves at the very last stages having to deal with the possibilities of what happens if she cannot reach an agreement.

The affirmative procedure gives rise to the concern that the matter will have to return, perhaps on Friday: it depends what time the European Council meeting finishes. We have already destroyed the recess for many people, and that would destroy the weekend as well. Although we on these Benches are normally strongly in favour of affirmative resolutions, on this occasion we see the force of what is in the Bill.

[Lord Robathan]

What confuses me is that the noble and learned Lord appears to be answering on the Bill, which is a Private Member’s Bill sponsored by the noble Lord, Lord Robertson. He appears to be answering for the Opposition, so is this an opposition Bill or a Private Member’s Bill?

[Lord Goldsmith]

The noble Lord should know that on any amendment or Bill in this House, the Government and the official Opposition will have a view, and we seek to help noble Lords by providing that view. That is exactly what is happening here.

[Lord Pannick]

I am not responsible for the Bill, but I offer a further argument in favour of retaining Clause 2. The practical reality is that, on Wednesday night, the Prime Minister will be offered a deal by the European Council. She will either accept it or not. The overwhelming probability is that she will come to some agreement with the European Council.

If the matter comes back on an affirmative resolution before the House of Commons and this House on Thursday or Friday, there will be only two choices: either we accept the date that has been agreed or we leave on Friday at 11 pm. The House of Commons has overwhelmingly voted that it does not wish to leave with no deal, and the view of this House is perfectly clear that it does not want to leave with no deal. Therefore, it seems to me that, in the extraordinary circumstances in which we now find ourselves, Clause 2 is entirely acceptable.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Before the noble Lord sits down, why does he think the Government would resist this?

[Lord Goldsmith]

My Lords, the noble Lord, Lord Pannick, is right, though I understand where the noble Baroness, Lady Noakes, is coming from. The point has been made about the Bill itself, but this does not take the Bill away—it will have served its purpose, or not, and therefore we could not support this amendment. I imagine the Government would not either, but I wait to hear.

[Lord Robertson of Port Ellen]

My Lords, I will break my Trappist silence.

European Union (Withdrawal) (No. 5) Bill

Lord Goldsmith Excerpts

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I am happy to support the Bill from these Benches, and I thank my noble friend Lord Rooker for bringing it to this House. I share the view that has been expressed that it would have been better if the Government had brought it, but we are where we are. I look forward to seeing it pass.

The purpose of the Bill was expressed quite shortly by my right honourable friend Yvette Cooper in the other place. I will quote what she said, which seems so right:

“The Bill simply provides for a simple, practical and transparent process to underpin the Prime Minister’s plan. It ensures that the extension has the support of the House of Commons, but also that we keep the parliamentary safeguard in place… She has recognised that she cannot implement anything in only nine days, which is why the extension is needed. This is a hugely important Bill”.—[Official Report, Commons, 3/4/19; col. 1135.]


I agree with that. It was described by the noble Lord, Lord Anderson of Ipswich, as a modest Bill. Modest it may be and, in certain respects, that is much to its credit, but it is an important Bill because of the issues that so many noble Lords have spoken about this evening. As the noble Lord, Lord Cormack, said:

“It was created in a vacuum, and the vacuum was created by a lack of leadership”,


because of uncertain times.

In listening to this debate, three points came across to me. The first was objection to the Bill from those who either view a no-deal Brexit with insouciance or actually welcome it. A number of noble Lords spoke in that way, such as the noble Lord, Lord Howard, who knows the high respect in which I hold him, the noble Lord, Lord Willoughby de Broke, and my noble friend Lord Howarth of Newport, for whom I also have great respect. I profoundly disagree with their view that a no-deal Brexit is not a great problem.

This evening we heard from the noble Lord, Lord Stern of Brentford, important evidence-based concerns about what a no-deal Brexit would do. Other noble Lords have spoken about that in detail, and I want to add the reference that has already been made, although belatedly, to what Sir Mark Sedwill has said about the risks. It is not, as the noble Lord, Lord Fairfax of Cameron, described it, “a little short-term inconvenience”. Those are the merits of the principal point that has been debated.

The noble Baroness, Lady Wheatcroft, rightly described the problem not so much as not trusting the Prime Minister, but not trusting the circumstances in which she finds herself and the people she finds around her. It is therefore an insurance policy. It may well be that, without this, the Prime Minister is able to achieve what she now wants, but it is important to have an insurance policy, as my noble friend Lord Liddle described it.

That took up most of the debate this evening. The second main point was the question of constitutionality. The noble Lord, Lord Norton of Louth, referred to that. I was privileged to sit on the Constitution Committee when he chaired it, so I always listen to what he says with great respect. The problem is that we are in, as my noble friend Lord Liddle said, perhaps the gravest crisis since the Second World War and exceptional circumstances require exceptional measures. They are exceptional in a number of respects, not just because of the gravity of the situation with which we are faced but because of the apparent lack of ability of the present Government to solve it. That has led to the other place taking the view that it must step in to help resolve the problem.

There is a need for the Bill. It is important that we respect the other place, which has sent it to us. We will be giving it scrutiny, and I am glad that we will now continue this debate in Committee next week, although I have something to say about the critical need to get it done on Monday.

I am also glad, as the noble Lord, Lord Cormack, said, that we have been able to have this Second Reading debate in a much better atmosphere than we had earlier in the day. It was an unpleasant afternoon for all of us. The comments made about Sir Oliver Letwin were uncalled for. He did not deserve them, given what he has been trying to do in the interests of the country, having been a loyal servant of the public. Although he did not come up so much in this debate, I also mention Dominic Grieve, who was my shadow when I was Attorney-General. A more honourable and honest man I do not know. I agree with the noble Lord, Lord Cormack, that it was a pleasure to see the noble Lord, Lord Spicer, back in his place.

A number of noble Lords, including the noble Lords, Lord Howell of Guildford and Lord Cormack, and the noble Baroness, Lady Noakes, referred to the importance of compromise. The Bill at least provides an opportunity for that to take place. Whether it happens is another matter.

I am very conscious that the House has been debating this, one way or another, for a number of hours, so I will wind up quite quickly. On the detail of the Bill, the noble Lord, Lord Pannick, raised the most important point about the royal prerogative. Following on what the Leader of the House said, the noble Earl, Lord Cathcart, raised the danger of the Prime Minister finding herself in a situation where something is offered which she would want to accept but which is not actually covered by the Motion that has been passed by the House. Does she have to come back? That ought to be looked at and, for our part, we will look at it before this matter comes back next week.

I want to underline, and end on, the importance of getting this done. Noble Lords will be aware, because they will all have read the Bill carefully, of the way it works. The day after Royal Assent is given, a Motion needs to be presented to the House of Commons—which it might or might not accept—setting out the time for the extension. That gives rise to two issues. One is that it is proposed by the Government—I would anticipate, by the Prime Minister—for the other place to consider. It is not the European Union setting out the timetable, but the Prime Minister must be given the date in time to pass it to the members of the European Council so that they can consider it before they meet on Wednesday. They will not thank anybody, I understand, if they are given it with very short notice. It is obviously an important decision for them and they will want to discuss it among themselves. That is why we must reach the position on Monday where we have dealt with all amendments in time for the other place to also deal with them that day and Royal Assent be given, so that the following day, Tuesday—only one day before the Council meeting—a decision can be reached on the timing.

A number of noble Lords have expressed happiness that we have been able to reach an agreement so that this does not go through the night tonight, but that was on the basis that we will conclude this on Monday—the Chief Whip talked about 8 pm. I hope all noble Lords will be able to co-operate on that. We have our work cut out, but not if we do it efficiently. At the end of the day it remains quite a straightforward and simple Bill, which we will be supporting.

[Baroness Deech]

The noble and learned Lord referred to this as the greatest crisis since the Second World War. Briefly, that brought to mind the famous case of Liversidge v Anderson, the facts of which I need not remind him of. There were emergency powers and the majority of the court held, “Yes, that’s all right, let’s lock this chap up”. The judgment we remember now, and it was famous even then, was the judgment of Lord Atkin, who said:

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace”.


We stick to the principles we have always had. His reference to Second World War reminded me of that: when you have an emergency—and I would not compare this with the Second World War—it is all the more important to use the proper constitutional principles.

[Lord Goldsmith]

I am grateful to the noble Baroness. I remember that case very well, of course, though I did not have the pleasure of being one of her constitutional class. Of course, what the House of Lords decided in that case was that it was not for individual Ministers to make decisions; that is what the case was about. It was about control of executive power: they were not to make determinations themselves. In this case, the Bill seeks to give primacy to the House of Commons to enable its decision, perhaps in the face of the wishes of the Executive, to be effected.

Brexit

Lord Goldsmith Excerpts

Monday 25th March 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, nothing makes me prouder of being a Member of your Lordships’ House than sitting through a debate like this. Although we are, as the noble Lord, Lord Bowness, said, spectators at the moment, the wisdom, as the noble Lord, Lord Cormack, said, strength of opinion and experience shown in a debate like this is extraordinary and something to be proud of. We also learned one or two things. I am not sure that I will get used to thinking of the noble Lord, Lord Hennessy, as a national treasure. I still think of Dame Vera Lynn as the original national treasure. I can think hard about that, and I did not know that the middle name of the noble Lord, Lord Naseby, was Wolfgang, so one learns a lot in these debates.

The noble and learned Lord, Lord Hope of Craighead, knows how much I admire him, even though I do not agree with the conclusion of his speech. I was particularly struck by the speech of the right reverend Prelate the Bishop of Newcastle. She reminded us of the risks to which Members of Parliament, particularly female Members, have been exposed—and not just by this issue but by another that is taking place at the moment, about which nobody can be the slightest bit proud. I wish her well with her three candles project, which sounds a tremendous way of trying to heal some of these divisions, as the most reverend Primate the Archbishop of Canterbury told us would be necessary on a previous occasion.

I will come to what I take from the debate so far, but I first want to deal with the legal issues that have arisen. Noble Lords know that I turn up at these debates for that reason. We have not had many but I want to refer to a couple. We have had no change, which we had all been expecting, in the legal issues relating to the backstop. We have had no further opinion from the Attorney-General. We have had no change, as we know, to the withdrawal agreement. It is clear that there will be no change to the part of the withdrawal agreement that says that the backstop will continue unless and until there is a new agreement. That has not changed at all. Maybe we will come back to that at a later stage.

There has been a suggestion—I think the only person who mentioned it in this debate was the noble Baroness, Lady Deech—that Article 62 of the Vienna convention on the interpretation of treaties is a way out of the problem. I fundamentally, seriously and critically disagree with that. From a letter in the Times, I know—rather to my surprise, because I admire him very much—that it has the support of the noble Lord, Lord Pannick. I am sorry that he is not in his place, because he could jump up and tell me why I am wrong. He will have to do that on a later occasion. However, I have been back to the treaty and I do think he is wrong. The treaty says clearly that a fundamental change in the circumstances existing at the time of a treaty’s conclusion, and which was not foreseen by the parties, can lead to its termination. I do not see how one can possibly say that a failure to agree a deal is something that is not foreseen; obviously, that is what we have been debating for some time. That does not seem to be an answer to the conundrum that has been put forward.

One question that was raised, and which might be relevant, was whether international law trumps national law. Several noble Lords raised it, and it is referred to in the Prime Minister’s Statement. I notice that the noble and learned Lord, Lord Keen of Elie, in his place, so he can at least whisper the correct answer to the noble Lord, Lord Callanan, who is winding up this debate. My understanding is this. It is rather as though one is a member of a club. If the club’s rules say that you are no longer a member, or it decides that you are no longer a member, you can say as much as you like that you continue to be a member, but you are not. I think that that is what is going on. Whether it is right to describe that as international law trumping national law, I am not sure, but I am clear in my own mind that because the European Union has now said that the leaving date has changed, it has changed. Until that date we will continue to be a member and after that date, we will not be. The fact that there is little legal discussion in this debate probably indicates how peripheral these issues have been, compared with what your Lordships have really been considering today, with the wisdom, insight and perception that your Lordships show on these occasions.

[Lord Butler of Brockwell]

If the noble Lord’s club analogy is correct, why do we have to pass a statutory instrument at all?

[Lord Goldsmith]

It is to change the club’s rules. In this case, Parliament is the club. I was just trying to explain how I see the situation. I see the noble and learned Lord, Lord Mackay, rising to his feet and gladly give way to him.

[Lord Mackay of Clashfern (Con)]

My Lords, I think that there has been some discussion about this. The situation is that the EU is in charge of the treaty. Therefore, if we are not out of the treaty, we remain members as a result of the treaty of the European Union. However, the treaty by itself was not the whole story, because we had to pass an Act of Parliament to make the treaty work in the United Kingdom. If, as has happened, the EU has extended the date so far as the treaty is concerned, in order to make our law conform with the way the treaty works, the statutory instrument is required. Otherwise, there would be a discontinuity between the treaty on the one hand and the initial law on the other.

[Lord Goldsmith]

I entirely agree with what the noble and learned Lord has said. I see that the noble and learned Lord, the Advocate-General, has come to sit next to the noble Lord, Lord Callanan, to put him straight on all of this.

Let us move on quickly to the things that matter more than that. The issue is what the country is now faced with. In that debate we are now really a spectator, as has been said. At this stage, we are watching as the House of Commons considers what to do. We may well find that, through the mechanism of indicative votes—personally, it is what I hope we will see—it will now consider all the possible alternative routes for this country. As has been said by a number of your Lordships, we are reaching that point at a very late stage and, as has also been said, that is as a result of the obduracy of the Prime Minister. One has to respect her stamina and perseverance but, as already raised in this debate, the fact remains that there are people whose voices have not been heard by the Prime Minister. It was remarkable to watch on the television yesterday who was turning up at Chequers. I admire their motorcars, and there were two exceptional ones that I envied, but it was surprising for the people of this country to see that this is how their future is being decided—by private discussions with just a small group of people.

Now, I hope that that will not happen and that the House of Commons will take charge of the situation. I have no doubt that it will take into account many of the points that your Lordships have discussed today. I am glad that there was a reference during our debate to the position of young people. I have seen the benefits of Erasmus in my own family, and I saw the young people during the march protesting about their lack of voice.

I think that only the noble Baroness, Lady Ludford, referred to the contribution that the European Union has made to peace and security in Europe. I was struck by the remarks of the noble Lord, Lord Heseltine, at Saturday’s march and I am sorry that he is not in his place. This was powerful stuff. He has said it before in this House, although perhaps not in those words. As I recall, he said that being alone was not Churchill’s wish or hope; it was his fear. Peace and security is a very important matter which no doubt the House of Commons will take into account when it considers where we go from here.

Inevitably, your Lordships have talked about the legitimacy of a referendum. Again, it is for the House of Commons to consider in its indicative votes whether that is a way forward. I myself have never understood the objections to a further referendum on democratic grounds. I appreciate that people who thought they had achieved a particular result the first time round do not want to see it rerun. However, regarding legitimacy, in an earlier debate in this House—I do not which one it was; it might have been the first debate but perhaps the noble Lord, Lord Newby, can tell me—the noble Lord, Lord Lisvane, used the colourful if slightly whimsical example of his maiden aunts being invited to make a choice on the basis of inadequate information. I therefore agree with the noble Baroness, Lady Altmann, who asked why this would be undemocratic.

As a result of what the European Council said, there has also been much discussion about the need to hold further European elections. If that is the case, it will be, as the noble Lord, Lord Kerslake, said, inconvenient—one could perhaps put it more strongly than that—but I find it difficult to describe it as undemocratic to ask people to vote in an election. That is perhaps why the noble Lord, Lord Butler of Brockwell, referred to the need to give people the final say. However, that is not for us to decide today. Looking at the annunciator, I see that there is a Division in the Commons. Maybe I should sit down before we find out what is going to happen over the next few days. Arguments were powerfully put by my noble friend Lord Adonis. I am not sure that I agree with the sequencing that he has in mind but that was not the fullness of his observation.

In an earlier debate, I drew an analogy with the play “Waiting for Godot”. At that stage, we thought that there would be a further opinion or a further amendment to the legal position that would cause us to reconsider what we had been saying about that. I quoted the Irish critic who had referred to “Waiting for Godot” as,

“a play in which nothing happens, twice”.

I hope that we are not going to see nothing happening three or four times.

We have to move on for the sake of the country, and it is now to the other place that we must look to get the guidance and establish the direction in which the country will be going. That is what I look forward to seeing at the end of this evening when the House of Commons decides about the procedure, and during the rest of this week, when it makes its decisions on the votes.

Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Goldsmith Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, there are two preliminary issues. First, why am I standing here? The answer is that because we were promised some legal changes to the withdrawal agreement. We have seen in the newspapers stories about the peregrinations of Attorney-General Geoffrey Cox going to Brussels and putting forward new texts, and we were going to see what the result of that was. It was thought that, as we were expecting such a text, it might be useful to noble Lords if a lawyer was here to respond, but there is nothing.

That leads to the second question which your Lordships may be considering. What are we actually debating today? I think the answer is that it is the same 611 pages that we debated the last time we had a debate: the withdrawal agreement and the political declaration. At the moment, there is not a single word changed. That is the issue before your Lordships today.

Can we expect a deus ex machina during this debate? There are rumours that the Prime Minister is in the air heading to Strasbourg. That comes from the Irish, so whether it is true is yet to be confirmed—no doubt the Minister will confirm it.

[Noble Lords]

Oh!

[Lord Goldsmith]

Let me be clear: that is not an attack on the Irish—quite the contrary. It is just that the Government have not yet confirmed where the Prime Minister is going—at least, not before I entered the Chamber. Before noble Lords get the wrong idea, when I said “deus ex machina” that was not intended as a compliment to the Prime Minister. The idea of a messenger arriving during a debate is one to which I will return. Of course, noble Lords have been in the position we are in today at least once before. When noble Lords came to debate the terms of the withdrawal agreement on 10 December, the debate was pulled because there had not been the movement the Government were hoping for so that there could be a more productive debate.

Noble Lords might recall that the theatre critic Vivian Mercer famously wrote of Beckett’s two-act play “Waiting for Godot” that, “nothing happens, twice”. Change the name of the principal from Godot to Cox and we could perhaps have a good depiction of what this House and the other place have been enduring. We are still waiting for this change, and the Prime Minister made it clear in a Statement to the other House on 29 January that what would be agreed would,

“involve reopening the withdrawal agreement”.—[Official Report, Commons, 29/1/19; col. 678.]

It has been common ground that there needs to be something legally binding to change the status of the withdrawal agreement as it is at the moment. By the way, I add a little poignant note that the theatre review I referred to was published in the Irish Times.

This idea of the theatre of the absurd is not without parallel. The absurdity of where we are at the moment was given a little additional twist when, answering questions in the other place, the learned Attorney-General said that the subject of the discussions he had been having had,

“come to be called ‘Cox’s codpiece’”.—[Official Report, Commons, 7/3/19; col. 1109.]

I prefer not to understand what imagery was intended by that phrase—better not to ask. The fact is that noble Lords have nothing but the existing text to debate today.

When the Minister comes to reply, will he be able to tell us whether it is correct that the negotiations involving Attorney-General Geoffrey Cox have stalled and that nothing more will come of that? Will it be the case, as some have suggested, that tomorrow the other place will be expected to look at potential words that might be put to the European Union? In that case, we all need advance sight of those words. Neither the other place nor we can express an opinion on what the effect of those words would be unless we have seen them in advance. I hope it will not be right at the 11th hour. I think the Minister has confirmed—it was a question many were considering—that the meaningful vote will in fact take place in the other place tomorrow. That is good to know. I understood him to say—but will he or his noble and learned colleague please confirm—that the other votes promised by the Prime Minister for Wednesday and Thursday, subject to the votes tomorrow, will go ahead as planned? I see the noble Lord, Lord Callanan, nodding his agreement, and I am grateful for that.

Given that there is so little substance to deal with at the moment, and that we hope to have the opportunity of dealing with it when we actually see what changes there are, I will go back to the theatrical analogy I was drawing before. Noble Lords may also recall that in the play I mentioned, “Waiting for Godot”, the character Boy—who is some sort of messenger, apparently from Godot—enters to inform the two principal characters, Vladimir and Estragon, that Godot could not come that evening but would come tomorrow, “without fail”. When the Minister comes to answer, will he tell us that we will see the new agreement tomorrow, without fail?

Brexit: Withdrawal Agreement and Political Declaration

Lord Goldsmith Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I do not think that is for me to do, but no doubt my noble friend Lady Hayter will comment on what the noble Lord has said. He knows that I have huge respect for him. I want to touch on the legal issues, I am afraid, as I did when I spoke on 5 December.

The principal point I made then was that the so-called temporary arrangements could not be relied upon to be temporary under the wording of the withdrawal agreement and political declaration. No amount of aspiration that the Northern Ireland backstop would be temporary could achieve that without an actual change to the legally binding language of the withdrawal agreement, and the only way of changing the effect of the legally binding withdrawal agreement was by another legally binding agreement or amendment. Despite the Prime Minister’s pilgrimages to Brussels, no such legally binding agreement, or amendment to the withdrawal agreement, has come about. Further warm words of aspiration will not change the position.

As I said then, noble Lords may be prepared none the less to rely on those expressions of hope and take the risk that in the end it will all be all right. I also said that for myself I did not believe that comfort could be taken from legal arguments—for example, about the best endeavours obligation and the arbitration arrangements. I need not elaborate further on those arguments, which are set out in the speech I made. Nothing has changed, in my view.

There is, I suspect, a new argument to be advanced by the Government that reliance can be placed on Articles 60 or 62 of the Vienna Convention on the Law of Treaties. As to Article 60, under which a treaty could be terminated for “material breach”, precisely the same problem arises from proving a breach of the general good faith obligation, particularly when that obligation is qualified—a point I did not make before—by the following words:

“and in full respect of their respective legal orders”.

Nobody has explained quite what that means, but to me it would mean that, so far as the United Kingdom is concerned, the respective legal order of the United Kingdom is that Parliament’s will must be followed, and in the European Union it is not much different so far as the European Parliament is concerned. That seems to be an additional reason why it would not be possible to say that good faith had not been followed in the negotiations.

As to Article 62, under which a treaty might be abrogated by,

“a fundamental change of circumstances”,

it is clear that the entry into force of the backstop can hardly be described as a fundamental change of circumstances, as it is expressly foreseen and envisaged in the withdrawal agreement. That is not what “fundamental change of circumstances” means. That is very clear.

Today we have seen the letter from the two Presidents—President Juncker and President Tusk—and the letter from the Prime Minister. I do not see them changing the legal situation on the backstop; nor, I see from the Attorney-General’s letter, does he. He says in paragraph 2 that,

“they do not alter the fundamental meanings of its provisions as I advised them to be on 13 November 2018”.

Your Lordships will have seen that very clearly.

The letter from the Presidents does repeat warm words. It also repeats—this is most important—the legally correct statement that if the backstop is triggered it would apply,

“unless and until it is superseded by a subsequent agreement”.

Those are really important words. They mirror precisely what is said in the withdrawal agreement, in particular the final sentence of paragraph 4 of Article 1, and much reliance was placed on that, rightly, by the Attorney-General in the letter that the House has seen. That is the fundamental point. The position is that, unless and until a subsequent agreement takes place, the backstop will continue to exist. It may be that a political agreement can be reached. That is not the point that I am dealing with.

It is clear, of course, that the EU was pressed to give Mrs May something, but this is the best it has produced, and it says more by what it does not say than by what it actually says. Only a new agreement at the end of the discussion on the political declaration will bring the backstop to an end. That is what I wanted to say about the events that have taken place since we last debated this issue.

I want also to mention briefly the other legal topic, which has been touched on in previous speeches to some extent, which is in relation to issues of justice and security. On security and criminal justice, reference has been made already, for example by my noble friend Lord Browne of Ladyton.

But so far as civil justice is concerned—and commercial matters—there is much less. As the House has already been told, there is nothing in the political declaration that calls for co-operation in that field. Nor will it be a solution, in the critically important area of enforcement and recognition of judgments, to rely on the Lugano treaty. I could explain the detail of that but, essentially, there were difficulties in and problems with the original Brussels convention, including the rather charmingly named Italian torpedo—not a form of sandwich, as many may think—it gave rise to. That was fixed, but not in the Lugano treaty.

Finally, I refer to the absence of any real provision in relation to legal services. I declare an interest as a practising lawyer and a member of a firm that practises across boundaries. The arrangements that there are in relation to legal services in future are far from satisfactory.