European Union (Withdrawal) (No. 5) Bill

Lord Hamilton of Epsom 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—

--- Later in debate ---

[Lord Judge (CB)]

My Lords, I had not intended to speak. I do not think that this is a good Bill. There have been much better Bills, and the process that we have been through has not been the House at its best, because events have forced the situation on us. Therefore, I apologise to the House. I did not put my name down to speak at Second Reading—I had not intended to speak at all. I support this amendment, because I think it will make a bad Bill rather better.

May I diverge, however? We are setting a precedent. There is no point in pretending that we have not set a precedent by what has happened. If I may, I offer this comfort: sometimes precedents do not have to be followed. This allows a precedent. I suggest to whichever side of the House is in power for the next 20, 30, 40 or 50 years that we do not allow it to be followed again. At least we should communicate our view that this, whether precedent or not—and it was—is a one-off and goes no further.

The point of Amendment 7 is very simple: we want to make the Bill a little better than it is by removing the constraints that are otherwise imposed on the Prime Minister. That, I respectfully suggest to the House, is desirable. As I do not intend to speak or have my speaking taken as support for this—

[Lord Hamilton of Epsom]

Does the noble and learned Lord accept that, with an unwritten constitution, it is impossible to guarantee that a precedent will be a one-off? It will be used by others when it is convenient for them to do so.

[Lord Judge]

Of course it will be used by others. Lawyers use bad precedents constantly, but it does not mean that it has to be followed.

I did not intend to speak, for the reason I have given. This amendment will improve the Bill. That is the point of it. Beyond that, I do not wish to say any more, because it may indicate somehow that I am backing off from my concern about the Bill. So in lawyerly fashion I simply say that you have all heard the noble Lord, Lord Pannick. I agree with him. I have nothing to add.

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[Lord Trevethin and Oaksey (CB)]

My Lords, I am yet another lawyer. I apologise for that. I will not detain the House for long.

I respectfully agree with the noble and learned Lord, Lord Judge, that this came to the House as a bad Bill—I would say a very bad Bill. It sought to send the Prime Minister into the conference chamber not naked but wearing a straitjacket, and that was clearly inappropriate given the very delicate negotiations that are going to have to take place this week. As it stood, it was not proper legislation but, in the words of Nye Bevan, “an emotional spasm”.

I fully support the amendments proposed by the noble and noble and learned Lords. They are obviously necessary, bizarrely, to prevent the Bill having the inadvertent effect of increasing the risk of an accidental no-deal exit, so I fully support them. However, I am concerned that, if these amendments pass, the Bill will appear to be, and be, a bit of a mess. The Prime Minister has already, as I recall, made one request for an extension, which is outstanding; I doubt whether it will be accepted. After the Motion is passed in the House of Commons, a further date will be introduced and she will have to write another letter, I think, to the EU specifying another date. That will presumably displace application number one for an extension.

The amendments, which I support, would make it open to her to make a further, third, application for an extension, specifying a further date. That will displace, as I see it, the second application made pursuant to the Motion in the House of Commons. What is left of the Bill, as I see it, is nothing more than this: an edict from Parliament that the extension that the Prime Minister is able to seek cannot end earlier than 22 May 2019. If it had been restricted to that, we would have saved a lot of time.

[Lord Hamilton of Epsom]

My Lords, I should like to pick up on something the noble and learned Lord, Lord Goldsmith, said about agreement on dates. As I understand it, the Prime Minister is asking to go to the end of June. Presumably she has Cabinet approval to do that.

[A noble Lord]

Very unlikely.

[Lord Hamilton of Epsom]

I agree, nobody knows. Let us hypothesise that she cannot go beyond that date. She goes to Brussels and says: “I would like to extend until the end of June”. Suppose that Brussels says: “No, we are frightfully sorry but we have agreed two dates with you already. One is in the context of no agreement and the other is in the context of the agreement being agreed by Parliament. We are not prepared to move from that”. I presume that the noble and learned Lord, Lord Goldsmith, will be answering on these amendments —I suspect the noble Lord, Lord Robertson, does not feel that responsible for this Bill, having taken it over from somebody else. What happens if the EU does not move from the two dates that it has already agreed, therefore still leaving us in the position where the Prime Minister will come back on Thursday and say, “I can get no agreement from the EU to change the dates it has already given us”? How in those circumstances will we not come out with no deal on Friday?

[Baroness Deech]

My Lords, as I mentioned before, there is nothing in this Bill specifically to stop no deal. It requires the Prime Minister to seek and seek again. The root of the trouble is that for more than a hundred years we have observed the separation of powers in our constitution. The noble Lord, Lord Norton, is one of the greatest experts on this—I think he is not in his place, but if he were he would probably say that that separation is sometimes not exact. However, this Bill is a very good illustration of why it is not a good idea to mix up the powers of the Executive and the legislature. I would like to hear from whoever is the surrogate parent of this odd little embryo quite how it will prevent no deal. An abortion?

European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019

Lord Hamilton of Epsom Excerpts

Wednesday 27th March 2019 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, like my noble friend Lord Robathan, I was rather enthusiastic about the amendment of the noble Baroness, Lady Hayter. It starts rather well, going on about how the Prime Minister has conducted the negotiations very badly, and regrets,

“the manner in which Her Majesty’s Government have conducted withdrawal negotiations with the European Union which has resulted in widespread uncertainty as to when the United Kingdom will leave”.

“Hear, hear”, to that, I say. I would have been happy to support that. But the amendment goes on, of course, to say that we should support all the machinations in the other place, where Executive powers have now been transferred to the House of Commons and away from the Government.

If that is what the noble Baroness wants, quite clearly the Labour Party is resigned to remaining in Opposition in perpetuity. As we do not have a written constitution, this will become enshrined in the way we do our business, and the Government will not be able to govern in the future—and that will apply to any future Labour Government as well.

The real problem is that these negotiations could not have been conducted worse, if anybody had tried. One of the problems—here I speak in support of my right honourable friend the Prime Minister—is that people have constantly wanted to rule out no deal. No deal is not half as bad as everybody likes to make it out to be; indeed, as the preparations have been done for no deal, most businesses now are prepared for it. For some reason, all this hysteria has been built up about no deal. The result is that, by mandating the Prime Minister to rule out no deal, we have completely undermined her negotiations with the EU. It would have been totally different had she actually been able to say, “If you can’t give me concessions, we will end up with no deal”. That has not happened. As a result, the EU has said, “We have given you an agreement and we have no wish to renegotiate it”. There is no downturn potential whatever for the EU from facing her down, which is what has happened constantly.

As my noble friends have said, the result is that the Prime Minister has been in a position where she has told us—108 times—that we will leave on 29 March. Gullible, stupid people like me believed her, and where are we now? We are talking about extensions to 12 April, and perhaps beyond. So it is not surprising that people are becoming very disillusioned with this Government and with her. It is undermining the whole position of government in this country. The Opposition have a serious responsibility for making a very bad situation worse.

It is all very well Members on the opposite Benches laughing. The noble Lord, Lord Adonis, actually wants us to stay in the European Union—

[A noble Lord]

At least he is honest.

[Lord Hamilton of Epsom]

Yes, he has been honest enough to say that. But who are we, as an appointed House, to tell the British people that they got the referendum result completely wrong and that it should be reversed? We have had this argument so often before. Where does it leave Parliament if Parliament cannot deliver on a referendum? A referendum is a delegation by Parliament to the people to make a decision. If Parliament does not carry out the decision, where does it leave us? It is a disturbing issue, and not one that all these remainers, particularly in your Lordships’ House, are really prepared to address. But what happens if we end up back in the EU, which the people have told us we should be leaving? People do not like to think about this very much, but it has enormous ramifications for democracy in this country.

We are now in a very difficult position, seeing endless extensions of the date on which we might leave. I am very sad that 29 March has now gone out of the window. Many of my friends who think, like I do, that it is critical that we get out, will be mindful of the powers given to the Prime Minister under the EU withdrawal Act so that she can at any time go back to Europe to ask for extensions, presumably for years if necessary. We have to think about that very closely before we decide how we will vote on the absolutely dreadful agreement that she has reached with the EU. It may be the least bad of all the bad options in front of us.

[Viscount Waverley (CB)]

For the record, the noble Lord may not be aware of breaking news. The Prime Minister has agreed to resign before the next phase of Brexit, in reality—I was going to say appropriately—because she will not stand in the way of a desire for a new approach in a bid to get Tories’ deal through.

[Lord Hamilton of Epsom]

I am extremely grateful to the noble Viscount forgiving us that information and I am delighted to hear it. If we have a new leader, we may well see very different results in our negotiations with the EU.

[Viscount Ridley (Con)]

My Lords, perhaps it is inappropriate to continue, therefore, with the speech that I was going to make, but I will start anyway. Earlier this afternoon, I was having tea with my son and past the window went a tugboat which was going against the tide. It was really struggling. I know how it felt. But I cheered myself up with the thought that the tide turns. The water goes down stream in the end—the tug was going up stream, I should explain.

Perhaps I can cheer up my noble friend Lord Framlingham by emphasising that 17.4 million people voted to leave the European Union and this genie is not going back in the bottle. If we fail on this occasion, there will be another chance to get it right. After the second Punic War, which imposed the Carthaginian peace that Mr Boris Johnson likes to talk about, there was a third Punic war. That did not end well either, but perhaps this one will end better—for the Carthaginians, that is.

As noble friends have said, the Prime Minister said 108 times that she would leave on 29 March, come what may. She said 50 times that we would not extend and she said 32 times that no deal was better than a bad deal. The noble Baroness, Lady Hayter, talked about the need to heed the will of Parliament. But surely we also need to heed the will of the people. There was a time when people on both sides of this debate, shortly after the referendum, emphasised that that is what they wanted to do. Hilary Benn said:

“You vote to leave? We’re out. That’s it. We’re going”.


George Osborne said:

“There’s no second vote. This is the crucial decision of our lifetimes. Do we stay in the EU, a reformed EU or do we leave?”


Yvette Cooper said, “I don’t think you should be trying to unravel a decision the public has made”, and so on and so on.

The noble Baroness, Lady Ludford, speaks of her hope that there will now be a U-turn on the second referendum issue as well as all these other issues. She is hoping for a Government who will do that. Maybe she should heed the will of MPs on this because the Wollaston amendment on a second referendum was turned down a few weeks ago by 334 votes to 85. But now they want a second vote on the second referendum and scheming is going on by Keir Starmer, Dominic Grieve and co to try to avoid an embarrassing defeat of that second vote on the second referendum. I understand that the Beckett/Kyle amendment, which is the result of this scheming, is a strange beast that tries to avoid getting blamed for this second referendum being turned down in Parliament.

Some of us wanted to abide by the result of the first referendum. Some of us are not convinced that there is any need to delay. Some of us are convinced that we were ready to leave. We may never get the chance to know just how wrong the scaremongering about no deal was. But we have known for three years that we were supposed to leave on 29 March. If we were not ready, then some people were preventing us from being ready. We have known for two years that the European Union was interested only in driving a very hard bargain and therefore we should have kept no deal firmly on the table.

Like my noble friend Lord Robathan, I deeply regret having to see this change enacted. I will not support the Government in making this change, but I cannot support the amendment of the noble Baroness, Lady Hayter.

--- Later in debate ---

[Lord Adonis]

I am aware of the fact that she has not literally gone today, but she is going very shortly.

[Lord Hamilton of Epsom]

I am glad the noble Lord accepts that she will be going shortly. This will be the second Prime Minister that the EU has got rid of. Does he think it will make it a hat-trick?

[A noble Lord]

You guys did it. It was your party.

EU Withdrawal

Lord Hamilton of Epsom Excerpts

Wednesday 13th February 2019 Lords Chamber

[Baroness Meyer]

Of course. It is an honour to be here. However, first of all, we need to respect what our Prime Minister has said, as well as what the people have voted for.

[Lord Hamilton of Epsom (Con)]

When the Government and Parliament of this country delegate a decision to the people, they have to follow the mandate that the people have given.

[Baroness Meyer]

We need to try to work together to find a solution and stop bickering and reinventing the facts. Do not delay; do not betray. Let us get on with it. There must be a solution somewhere that we can agree and work together on. As noble Lords keep saying, there is a future generation. They will not see us as very good if we keep on fighting, discussing and bickering. We need to look forward. I am sorry, I am a Conservative: we have a Conservative Government and we need to support our Government.

Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Lord Hamilton of Epsom Excerpts

Monday 28th January 2019 Lords Chamber

[Lord Newby]

It may come to the noble Lord as a bit of a shock, but Liam Fox is not in the habit of consulting me about secret meetings and who attends them—so, unsurprisingly, I cannot answer his question. Amazingly, Peers who might be thinking of filibustering in your Lordships’ House have not written a letter to the papers saying, “I have had this good idea of filibustering in the House of Lords. I am looking for volunteers to join me. If you are interested, here’s my email address ”.

[Lord Hamilton of Epsom (Con)]

I thank the noble Lord for giving way. I have not been approached by Liam Fox, either—but if it came to filibustering, I certainly learned a lot of lessons on the EU withdrawal Bill from the Liberal Democrats.

[Lord Newby]

I am sure that the noble Lord has learned many lessons from the Liberal Democrats: principally about the cost of every aspect of our leaving the EU, which my colleagues, 30 of whom spoke during debates on the withdrawal Bill, enunciated so clearly.

As I was saying, I hope that we will pass this Motion tonight to signal to the Commons the clear view of your Lordships’ House that, were MPs to decide to pass the Cooper Bill or any other legislation relating to the Brexit timetable or process, your Lordships’ House would deal with it in a timely manner.

The Cooper Bill is a recognition of what everybody knows: namely, that there is no way that the UK will be in a position to leave the EU in a mere eight weeks’ time with the full panoply of post-Brexit legislation in place. The inability or unwillingness of the Government to say how many Brexit-related SIs have been passed into law is testament to this. So is the withdrawal, because of its flaws and errors, of the mammoth SI which the noble Lord, Lord Cunningham, recently drew to the attention of the House. So is the fact that, with the exception of the Trade Bill, the various other major Bills which we will need to pass—on agriculture, fisheries and immigration—have not yet had even their Second Readings in your Lordships’ House.

In a BBC interview on Friday, the Leader of the Commons implicitly recognised this when she said, in respect of the need to get all the legislation through, that,

“if we needed a couple of extra weeks or something then that would be feasible”.

So an extension is on its way, one way or another. The only thing that is unclear is the basis on which such an extension will be sought. I suspect that if the Prime Minister simply asked for more time to try to come up with something which would unify the Conservative Party, she would be met with a firm rebuff by the EU. Even in the unlikely event that she was able to discover an alternative to the Irish backstop that satisfied the EU and her own party, the Government would need more time simply to get the necessary legislation through.

The other justification for more time would be to allow the people to express their view, with an option to remain in the EU. Your Lordships know that that is what we on these Benches support. I can only reiterate that there is now widespread support for a people’s vote across the country and a growing majority who say that, in such a vote, they would vote to stay in the EU. In arguing against such a vote and in answer to a Question last Thursday from the noble Lord, Lord Pearson of Rannoch, the noble Lord, Lord Callanan, said that in the 2016 referendum a majority of the electorate voted to leave the EU. That is of course not the case: 37% of the electorate voted to leave. I hope that in his winding-up speech the noble Lord will take the opportunity to correct that error.

There is no doubt that the country is now heartily fed up with endless Brexit arguments. There is a growing, and accurate, sense that while we wrangle over this issue, virtually every other area of public policy is being unaddressed. This week Parliament has the chance to narrow down the options and make some progress. Our role in your Lordships’ House is secondary, but we still have an obligation to ourselves and the country to play it to the full. I therefore urge noble Lords to support the Motion in the name of the noble Baroness, Lady Smith.

Brexit: Withdrawal Agreement and Political Declaration

Lord Hamilton of Epsom Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Jay. I put him in the mandarin class in your Lordships’ House—the number of your Lordships who seem to have been particularly traumatised by the decision of the British people to leave the EU. The mandarin class, of course, are people who have decided to spend a career in politics but not actually seek election. This gives them rather a different view about democratic votes from those of us who have. When I put this point to the noble Lord, Lord Butler, before Christmas he said that he thought the people should have the opportunity to vote again. On that basis, we could take a general election and produce all the same ridiculous arguments that people have been fed duff information and were too ignorant to understand the issues at stake, and therefore that general election should be held again. We trifle at our peril with democracy if we start saying that a referendum of this size—it was, let us face it, a very large turnout—should be overridden by a different decision.

My noble friend Lord Patten and the noble Lord, Lord Bilimoria, made the point that the country is very divided on this issue. I do not think we should get too excited. We are in the Westminster bubble here. Even if you walk just outside this building, you find people with placards protesting and waving flags. Some are determined that we should stay in the EU and others are grimly determined that we should get out. They stand next door to each other. There is a picture of a man from the remain side kissing a woman from the Brexit side standing outside Parliament.

So how divided are we? I suspect we would be much more divided if a second referendum were held. The decision would be reversed and a very large number of the people who voted to leave the EU would feel that Parliament had betrayed them, and would be given no option but to take to the streets because they could not look to Parliament to look after their interests anymore. When I mentioned this earlier, my noble friend Lord Patten said I was recommending civil disorder. I am not recommending it, but I suspect you might get it because this is a problem. If Parliament does not deliver what it is about to do—and what the people have decided it should do—of course people will look to operate outside Parliament if they do not think their Members of Parliament can represent them properly.

We are now in a ridiculous situation where these negotiations have been incredibly badly handled by my right honourable friend the Prime Minister. The noble and learned Lord, Lord Goldsmith, mentioned sequencing, which is a nice way of saying: why on earth did we allow the EU to make the Irish border item one on the agenda? As the noble Lord, Lord Morrow, has said, nobody in Ireland thinks there should be a border between north and south. He said that the position of the Taoiseach was somewhat ambivalent, but the latest thing I have heard from him is that he does not want a hard border between Ireland and Northern Ireland either. The Northern Irish do not want it, the southern Irish do not want it, the British do not want it, and even the EU has said it does not want it. I do not quite see who is going to put this hard border in, and cannot understand why we have spent so much time talking about it when it is something that would fall out of a free trade deal anyway.

The position we are now in is extraordinary. We have this absurd backstop that has been imposed on us by the EU and, as the noble and learned Lord, Lord Goldsmith, said, any guarantees on the backstop that we have been given by the EU are not really worth the paper they are written on. At the end of the day, they want us to stay in the EU, so why should we trust them not to hold us in there?

On a purely party-political point, reference has been made to the fact that the implementation period may go on until 2022. That happens to be when we will hold the next general election. If we are still half in the EU, still trapped in a customs union, what chance does my party have of winning an election, when Nigel Farage will undoubtedly set up another party to campaign against us in marginal seats? He will guarantee our defeat.

[Noble Lords]

Hurrah!

[Lord Hamilton of Epsom]

Yes, I am sure it will give enormous pleasure to the Liberal Democrats—although I am not sure they will benefit from it—but the fact is, he will. That is one reason why so many in my party in another place think that this deal is absolutely terrible and should be voted down.

That then leaves us with no deal, which is the default option. I am rather grateful that we have explored the possibility of no deal so much, because it is not really half as bad as everybody says. There has, however, been an awful lot of talk about crashing out. I quote my noble friend Lord Lilley, who says that what we will be doing is cashing in. That is the moment at which we will stop paying anything to the EU. We may have obligations, but they will certainly not be as massive as £39 billion. That will help to ease the passage of no deal, and make sure it is not as traumatic as so many people like to make it out to be.

Brexit: Financial Settlement

Lord Hamilton of Epsom Excerpts

Tuesday 11th September 2018 Lords Chamber

[Lord Callanan]

At the risk of repeating myself, I said we will honour our legal commitments, but it is a complicated legal area. There are some great legal brains in this House who would, no doubt, want to opine on the matter, but there are different opinions. Ultimately, I suspect this will come down to a matter of politics. We do not want to get into a dispute on these matters and so we have negotiated a settlement. It is hugely complicated, there are a number of different financial areas involved, but we remain confident that we will reach a withdrawal agreement and meet those commitments.

[Lord Hamilton of Epsom (Con)]

Can my noble friend confirm that nothing is agreed until everything is agreed, and that includes the financial settlement?

[Lord Callanan]

Yes, that applies to us. It also applies to the European Union.

Brexit: Legislating for the Withdrawal Agreement

Lord Hamilton of Epsom Excerpts

Tuesday 24th July 2018 Lords Chamber

[Lord Callanan]

Yes, I can confirm what the noble Lord said about the European Court of Justice. With regard to the Norwegian community, we are currently in negotiations with EEA member states and hope to reach an agreement on citizens’ rights similar to that which we have agreed with the EU.

[Lord Hamilton of Epsom (Con)]

I congratulate the Government on the agreement on citizens’ rights. Is this not a vindication of not taking unilateral action to guarantee the position of EU citizens in this country without simultaneously guaranteeing the rights of British citizens in the EU? Are we saying that the meaningful vote will be on a Motion or will it be incorporated into the Bill, which will take in the whole EU withdrawal agreement which is part of this Statement?

[Lord Callanan]

With regard to UK citizens in the EU, it is of course equally important for us to reach agreement on their behalf. That is one of the areas that we are pursuing with other EU member states. Of course, the matter is agreed. We are making preparations to implement our part of the bargain and we need to make sure that EU states are doing similar things for British citizens.

With regard to the exact form of the Motion to be agreed, the meaningful vote is now incorporated into the withdrawal Act.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

Monday 18th June 2018 Lords Chamber

[Lord Wallace of Saltaire]

I thank the Leader of the House for the generous remarks she made about the role of this House. It is particularly important that she sees it as an important part of her role to defend the role of this House and of Parliament as a whole. We have noticed in recent months, and even more in recent weeks, some pretty anti-parliamentary language in the press. I note that at the end of Quentin Letts’s one and a half page rubbishing of Dominic Grieve, he said:

“The sight of the elite grabbing power from the Queen’s government will rupture trust in the ballot box and could imperil centuries of British support for parliamentary democracy”.

[Lord Hamilton of Epsom (Con)]

I am very interested in the noble Lord’s remarks. Were they not his remarks rubbishing the Foreign Secretary when he was standing at the Bar?

[Lord Wallace of Saltaire]

I am not sure that these are in any sense the same. I was merely criticising the Foreign Secretary for not being Foreign Secretary. He does a lot of other things, but certainly does not fulfil the role of Foreign Secretary.

I am now talking about some fundamental constitutional issues, which are the relationship between Parliament and Executive Government. They are at stake in this and very much matter when it comes to how much of a role we play in looking at the detail.

We have seen some rather violent language in the media in the past few weeks. I spoke to a Cross-Bench Peer this morning who said, “It is intimidating and, frankly, I feel intimidated”. I know that many MPs, particularly women MPs, feel actively intimidated by the violence which they get on social media. I think the Government ought now to be saying to the right-wing media that violent language encourages violence. We are in a dangerous situation in which parliamentary democracy—that is to say, reasoned debate within a clear structure of rules—is something which we have to defend.

I note that the Sun on Sunday editorial accused MPs of having contempt for democracy and said:

“Such is the contempt these MPs have for democracy when it delivers a vote they don’t like … they seem neither to know or to care what they will unleash”.


I am worried about what the current atmosphere might unleash. It therefore seems to me that the way in which both sides conduct this debate is very important.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Elton]

My Lords, in moving the Motion that we are now discussing, the noble Lord, Lord Adonis, made one assertion which cannot go without comment. I had intended to ask him—I now ask your Lordships—to recognise that, whereas an elected House would be stronger against a weak Government, an elected and paid House would be weaker against a strong Government. I do not think that the noble Lord was here, because I think that it was in 1953, when the terrorism Bill was passed by this House. The ping-pong stage lasted from 2.30 pm on a Thursday till 7.31 pm on a Friday without interruption. I doubt whether the Whips of any Government with any majority in the House of Commons and a paid House here would fail to drive through such legislation. There would be no such resistance.

I raise that now merely because it will be a big issue later on. Let us not swallow the fiction that an elected and paid House is a stronger protection against an overmighty Government.

[Lord Hamilton of Epsom (Con)]

My Lords, I am grateful to the noble Lord, Lord Adonis, for this opportunity to say what I want to say now: those whom the gods would destroy they first make mad. Through the progress of this Bill in Committee and on Report, noble Lords collectively have taken leave of their senses and, in doing so, have put the whole future of your Lordships’ House as an appointed Chamber at stake.

When the coalition Government decided that they wanted to reform your Lordships’ House, I became a humble foot soldier supporting my noble friend Lord Cormack in his campaign to preserve an appointed House. We emphasised at that point that our job was to revise and improve legislation, but never to challenge the supremacy of the elected Chamber. I am not sure that we have kept to that. We seem to have had a very large number of amendments—much reference has been made to the 15 amendments made by your Lordships’ House. Many of them strike me as having been quite outside the scope of the Bill.

I went to see the Clerk of the Parliaments when I was withdrawing my amendment, which talked about preparing for no deal if we wanted a good deal, because I thought it completely irrelevant to the Bill. The Clerk of the Parliaments assured me that everything was completely in order and the amendments were quite acceptable; indeed, he said that they would have been totally acceptable in the other place as well. I then talked to a right honourable friend of mine in the other place who has watched the progress of the Bill in the House of Commons. He said that Conservative rebels had tried to table an amendment basically mandating us to remain in a customs union. This was judged in the House of Commons to be outside the scope of the Long Title and ruled out of order. Now my noble friend Lord Framlingham, who has experience of being a Deputy Speaker in the other place, tells me that many of the amendments that we have passed here would never be allowed in the other place.

This raises a serious question: are we as an appointed House going to have greater powers to put down amendments than the democratically elected House down the way? How comfortable are we in that position, when we have no democratic legitimacy whatever?

My right honourable friend Dominic Grieve at least has constituents whom he must go to and he may even stand at the next general election, but I do not have to remind the House that we have no constituents and probably will not stand at any general election ever again. The rebels in your Lordships’ House are therefore in a completely different position from those in the other place.

I have to say that support for our appointed House is drifting away. We are losing friends and gaining no new ones. One might reckon that my honourable friend Jacob Rees-Mogg would support an appointed House. Even he gave the warning the other day that we were playing with fire, so I do not think that we can rely on his support either.

When we beat off attempts during the coalition Government to reform your Lordships’ House, the person who really came to our aid was one Jesse Norman. We owe him a great debt of gratitude that we exist in an appointed House today. Jesse Norman was very courageous and sacrificed several years of his ministerial career as a result of taking such a courageous stand. He is now a Minister and I am glad that he is there, so we cannot count on him to rally right-wing Tory MPs and to save us next time round.

I am afraid that we have done enormous damage to our reputation in the country generally. Everybody says, “Oh, there’s nothing to worry about”. I have been in this House for 12 years now. I have never known a petition going down asking for the abolition of your Lordships’ House, but my noble friend Lord Robathan yesterday told me that the number of names on it was 163,000 and rising. We are being rather complacent if we think that we can carry on in this extraordinarily arrogant way telling people of this country who voted to leave the EU that they got it all wrong and that somehow we must come out with a solution that keeps us half in the EU and deny the people the vote they have made.

[Lord Cormack]

My Lords, I feel provoked to respond, because my noble friend Lord Hamilton of Epsom was kind enough to refer to the Campaign for an Effective Second Chamber, of which he was indeed a valued member and which my noble friend Lord Norton and I founded some 16 years ago. However, after that, I part company with my noble friend. He has read it completely wrong. By implication, he criticises the Clerk of the Parliaments and the advice given to your Lordships on tabling amendments. But what do Members do? They take advice and according to the procedures of this House, advice is given. I speak as one who was a Chairman of Committees for 15 years in the other place. It is not precisely the same advice as would be given in another House but we have behaved entirely according to the rules. One of the fundamental precepts of, and our whole purpose in, the Campaign for an Effective Second Chamber—the members of this group are drawn from all parts of your Lordships’ House, including a number of prominent Members on the Liberal Democrat Benches—is to fight for an effective second Chamber while always acknowledging the primacy of the other place.

European Union (Withdrawal) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Newby (LD)]

My Lords, your Lordships’ House has just passed an amendment to the Bill that gives Parliament a meaningful vote on any Brexit deal. This amendment, standing in my name and those of the noble Lords, Lord Butler and Lord Wigley, and the noble Viscount, Lord Hailsham, is about what happens next. It says the Government must put forward the option of a referendum on the deal, a people’s vote to determine whether the people as a whole approve the outcome of the negotiations or seek to remain within the EU. It would not require a referendum to be held in all circumstances but only if Parliament—the Commons in particular—voted for one. In what circumstances might the Commons choose to do this? I think it might well choose to do so if it had rejected the deal that the Government had negotiated, and that is a perfectly plausible outcome.

I have had the privilege of listening to almost all the 16 days on the Bill—some 120 hours of debate—and the dubious pleasure of hearing virtually every word uttered by Ministers during the process. Whether we have discussed clinical trials, family law, environmental protection, police co-ordination or international security, the position of the Government has been virtually identical: they wish us to have arrangements as close as possible to those that currently obtain, to the extent of being prepared to submit to the rulings of the hated European Court of Justice in respect of key regulatory bodies, while accepting that we will not have the benefits nor the influence that we enjoy today. In area after area, they accept that we will be powerless rule-takers. The alleged sunny uplands of being in a more favourable position in any of these areas have, to put it mildly, been shrouded in fog. On the key issue of the customs union, vital to the future of Northern Ireland and our trade more generally, and faced with the brick wall of hard reality, the Government’s response is simply that of petulant defiance.

If the Government reach an agreement based on their current negotiating stance, I believe that it will be obvious that it leaves the country poorer, less influential and less secure—as the Prime Minister predicted it would before the referendum. A large majority of MPs and members of your Lordships’ House know this, but may yet vote for it. Why? Because the 2016 referendum vote has become sacrosanct, and the expressed will of the people two years ago holds people under its spell. It is as if it has frozen attitudes in a way alien to the democratic principle, which allows people to change their minds.

There is only one way in which this spell can be broken; there is only one way in which MPs can be liberated to vote for what they know is in the country’s best interest and in line with their beliefs; and that is giving the people the final say. The spell cast by the previous referendum is so powerful because it reflects the political reality that a vote in the Commons to reject a Brexit deal could not be the end of the matter. In those circumstances, the country would demand a final say.

As the noble Lord, Lord Hamilton, put it at Second Reading, such a vote would mean that he had,

“no option but to take to the streets”,—[Official Report, 20/2/17; col. 144.]

because he could not get representation in Parliament. I suspect that he is not alone in that view. To save him from a potential criminal record and in order to give the people, who started the Brexit process, the chance to determine how it should be concluded, a vote on the deal should then be held.

[Lord Hamilton of Epsom (Con)]

As the noble Lord mentioned my name, the Liberals were very reluctant to accept the result of the first referendum, so why will they accept the result of the second one if it goes against what their interests are?

[Lord Newby]

My Lords, the first referendum was a mandate to the Government to negotiate Brexit. At the end of the process, a decision has to be taken on whether that mandate has been adequately fulfilled. The only question is whether the Commons alone or the Commons supported by the people should take that final decision.

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[Lord Hamilton of Epsom]

Does the noble Lord think that dissatisfaction with the EU has grown greater since the stance it has taken on the negotiations?

[Lord Howarth of Newport]

There is a great deal of national grumpiness, and when the British people get grumpy, they are a force to be reckoned with. The dispossessed rejected the status quo and were unimpressed by Project Fear, and my advice to my noble friends is to stop digging.

The false simplifications, the distortions and the mendacities on both sides in the referendum campaign were a degradation of our politics. I believe that the nation’s heart would sink at the thought of another bout of all of that. The second referendum would inevitably intensify the divisions and the bitterness of the first one. There would, I fear, be ugly episodes. The losers would demand a third referendum, whatever the noble Lords, Lord Newby and Lord Wigley, say.

We are not immune in this country to the neo-fascism that has so deeply, disturbingly possessed swathes of central and eastern Europe. We are fortunate that the most sinister figure to present himself as a leader of the far right in this country was Nigel Farage. If we were to have a second referendum, I greatly fear that a far more charismatic and sinister leader might emerge on the far right.

In any case, referendums are alien to our constitution, and the issues that would fall to be decided at a referendum, if and when the people were asked to judge the terms of the deal the Government had negotiated, would be immensely complex technical issues about trade, financial services, immigration, security, environmental protection and so forth. These complex issues should be determined by indirect democracy, by the intricate processes of parliamentary government, not by the crude instrument of a plebiscite.

I am always a little unsure of myself when I find myself disagreeing with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I have huge respect for his judgment. He calls for one last referendum. But the Constitutional Committee of your Lordships’ House advised us that referendums should occur only rarely, but were appropriate when a major constitutional issue needed to be decided. That is what happened in 2016. There was a referendum on the great constitutional issue of whether we should leave the European Union and reclaim the sovereignty that we had lent to it. That great constitutional issue has been decided. Strictly, of course, as noble Lords have mentioned, in legal terms that particular referendum was advisory, but politically it was binding.

Noble Lords may recollect this document. The Government sent it to every household in the country. It was sent to 27 million households and cost £9.3 million of taxpayers’ money. In it the Government said:

“The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union … This is your decision. The government will implement what you decide”.


We have to live with the results of our democratic choices. If Parliament and the Government were to renege on the commitment made by the Government in that document, I believe there would be a very serious crisis in our country.

Great political turning points in the national life are inevitably uncomfortable for the establishment. The political genius of the British establishment has hitherto been to accommodate itself, however reluctantly, to big, uncomfortable changes: Catholic emancipation, the Great Reform Act 1832, repeal of the Corn Laws, death duties, reform of the House of Lords in 1911, the welfare state and the loss of empire. The latest such challenge is leaving the European Union. Your Lordships’ House and the people who take the big decisions in government and public administration on behalf of the people should now be similarly prudent, constructive and magnanimous. We should not waste our energy in seeking to overthrow the democratic decision of the British people to leave a European Union that is discredited in the eyes of the majority and perceived as failing because of mass youth unemployment, deep inequalities and its undemocratic nature.

It is for the left to rediscover the generous patriotism of JB Priestley and George Orwell. Agitating for a second referendum is displacement activity. The real challenge is to revive the centre left and to get beyond the intellectual and political bankruptcy of social democracy in the period since 2008 and the global financial crisis. But if all the centre can now offer, 10 years after that moment, is to remain in Europe, voters will say, “These politicians don’t understand us, they don’t respect us and they have nothing useful to offer us”, and they will move to the extremes. If the respectable politicians do not engage with voters on these matters of the deepest possible concern then disreputable politicians will take our place. I heard a former Commissioner of the European Union on the “Today” programme criticise his former colleagues, saying that those in Brussels tend to live in something of a bubble. I hope that will not be said of your Lordships’ House.

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I have one last point, which I think is important. If Germany said that it wished to withdraw from the EU and the UK was one of the 27, it is very hard to imagine the UK providing the kind of easy exit it seeks for itself as those roles are reversed. I have in mind, as I think everyone does, the whole issue of Ireland—nothing to do with this amendment, perhaps, but a bellwether. Unless and until we know precisely what the Government’s view is about Northern Ireland, then for many people, not least those on the island of Ireland in the north and in the Republic, there will be precisely that uncertainty that has rightly been criticised in the debates already today. For these reasons, I have no doubt whatever that this amendment should command the support of your Lordships.

[Lord Hamilton of Epsom]

I was not really intending to get involved in this debate. However, the noble Lord, Lord Campbell of Pittenweem, has gone on about the canard that we do not know what the Government want out of the negotiations. He then explained to us what the Government want out of the negotiations: as easy a deal as possible. It is quite straightforward what the Government want. They want a free trade deal. They want to go on doing business with the EU in the way that they have in the past, with as little change as possible.

I hear your Lordships say, “But we’re not going to get that”. That is probably true, but that is because the EU is not prepared to give us that. It is prepared to suffer when it comes to its trade in goods—as it sells so much more to us—for the benefit of punishing this country, because for some reason the EU is such a wonderful organisation that you have to punish people who want to leave it. We voluntarily joined the EU; why can we not be allowed to leave it voluntarily without being punished? That does not say much for it, does it? This is one of the problems that the Remain campaign had during the referendum: what was the narrative that was so wonderful about staying in the EU? The fact that no narrative could be produced was one of the reasons why the Leave campaign won.

So let us not mandate the Government to doing x or y, as the amendment suggests. It is quite clear what the Government want. They want a bespoke free trade deal that carries on business as we have done in the past. It does not look as if we will get it but that is what the Government want, and mandating it will not make the slightest bit of difference.

[Lord Lea of Crondall (Lab)]

My Lords, I am very glad to follow the noble Lord, Lord Hamilton of Epsom. He spoke in rather a different tone from the previous speakers, my noble friend Lord Monks, the noble Baroness, Lady Wheatcroft, and the noble Lord, Lord Campbell, who have brought to this discussion what I might call a mature, thoughtful approach to a crisis facing this country that will become even more stark when we get to October.

A lot of people have mentioned today the relationship between the Lords and the Commons. I draw the House’s attention to a creative opportunity that we have right now in the light of the report published on 13 March by the Brexit Select Committee of the House of Commons, chaired by Hilary Benn MP. By a majority in some cases but unanimously in others, it has produced something pretty much like the sort of remit that I imagine will make sense in terms of the detail that one would present to Mr Barnier, who has his own remit. Perhaps I may pick out one or two points from it to give the flavour.

The noble Lord, Lord Hamilton, says it is obvious, and everyone knows, what the Government want. I think that, on a scale of one to 10, we know about only two or three out of 10 what is in the negotiating mandate. If we were to make a constructive contribution then, first, there would have to be something in the mandate because otherwise on what criteria would anyone, including ourselves, judge the outcome of the negotiations? I return to the analogy that my noble friend Lord Monks drew with trade union negotiations. The two things are analogous in some ways, though not totally. What you do not do is go into cloud-cuckoo-land at the start and say to the employer—on an industry basis or a company basis; it does not matter at the moment—“Here is our claim: double the pay, double the holidays, halve the hours and double the pensions”. There are two reasons why mature trade unions do not go down that route. First, you will not get what you have asked for, and what do you do when you come back to the executive? Does it call a strike? That would be a fantasy and it would not get anywhere. The second reason, of course, is that that trade union would not be taken seriously on the other side of the table. I know some trade unions can be satirised in that way, but then I suppose I could satirise Boris Johnson quite adequately if I put my mind to it.

With regard to the degree of specificity that is needed in a mandate at the moment, I shall read one or two of the proposals in the report of the House of Commons Select Committee. If the House of Commons is to be part of looking at a mandate, it does not matter who writes it down. The Government have yet to respond, by the way, to the report, which picks up a couple of points made by the noble Lord, Lord Campbell. I shall read just one or two:

“The border between the Republic of Ireland and Northern Ireland must remain open, with no physical infrastructure or any related checks and controls, as agreed in the Phase 1 Withdrawal Agreement”.


That is very difficult to implement, and things follow from it to do with the customs arrangement and the single market. If we are to get somewhere between cloud-cuckoo-land and the specificities, I must say to the noble Lord, Lord Hamilton, that there is no button to press that says, “Take back control. Job done”. This has taken two years of an educational exercise—we are in the middle of a huge educational exercise. Whether or not people argue in the pub about it—and some people do—the fact is that it is a very complicated matter, and it is now understood a lot more than it was at the time of the referendum. Let us try to see how people could understand it a bit better. Surely it would be good if there could be more transparency from the Government. I am sure they would get more respect in Brussels, Paris, Berlin and the rest if they could be franker than they have been so far—although we know the reasons why they cannot easily be franker at the moment and why Parliament needs to give them a nudge.

To give another example, on crime and terrorism, the report says that,

“arrangements must replicate what currently exists in operational and practical cross-border co-operation. In particular, the UK must retain involvement with Europol and the European Arrest Warrant and continue to participate in the EU’s information-sharing systems including SIS II”.

It goes on:

“Institutional and decision-making frameworks must be identified to ensure that the UK is able fully to participate in foreign and security co-operation with the EU, to meet the challenges it shares with its neighbours in the EU-27”.


Another example is:

“In respect of trade in goods, there must be no tariffs on trade between the UK and the EU 27”.


There are a dozen such propositions that would be highly desirable in an adult democracy, which has been a democracy for 1,000 years, or whatever it is. Surely that is the minimum that we can expect: a little more transparency, please. Then people would know that they were being treated as adults and take it from there. We have a huge problem with the credibility of where we are all headed in the continued mention of October this year. I am not saying that the idea that we can get to this place by October is impossible, but it stretches one’s imagination to see how all this will be done. A mark of our seriousness could be to make a proposition.

It is not a risk-free exercise for anyone, whatever their views, to put up a comprehensive proposition. The only way we can describe the arrangements from which we have to select is that they are all different trade-offs, or different package deals. Some people have seen a paper that a trade association produced on the different trade-offs on offer. The maximum at what you might call the remain end of the market would be something that does not look very different from where we are. Another, mentioned by my noble friend and increasingly the position of many industries, is to stay within the European Economic Area by moving from pillar 1, which is the EU, to pillar 2, which is EFTA, of which we were a member from sometime in the 1960s to sometime in the 1970s—a long time ago. It is an organisation that, on trade, works. No one doubts its position in the world. We must look at these practical alternatives. If we were to adopt the amendment, the House of Commons would find it a very constructive way forward to reach some accommodation, not only between the Lords and the Commons, which is a consideration, but between the Government and the people, as mentioned many times today. The amendment will provide constructive input, if the House will support it today.

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Offering reassurances on the Irish border and good intentions to finalise the detail of our future trade relationship are warm words, but having those warm words in some unspecified agreement after we have left the EU is liable to leave us in a very dangerous limbo indeed. In those circumstances, I believe Parliament would be justified in saying no and asking the Government to go back to the negotiating table—not to conduct negotiations and not even necessarily to set the direction of negotiations, but to go back to the table rather than fall off the cliff with no deal.

[Lord Hamilton of Epsom]

What evidence does the noble Lord have that you get a better deal when you go back to the table than the deal you have already got?

[Lord Reid of Cardowan]

The noble Lord may be able to predict whether it will be better or worse, but any deal that is acceptable to the British Parliament would be better than the disastrous situation of no deal at all. But that may need time. Why have an artificial deadline cutting us off from the conclusion of a deal, which may be there in the bones or, in the famous words of the Brexit Secretary, as a “platform”—and deny ourselves the opportunity of having the alternative of a cohesive deal rather than no deal, which I think would be the worst of all worlds? This is an opportunity that we should take.

A lot of the debate on Amendment 49 was about the ideological motives of those who are handling this. As my noble friend and occasional protagonist Lord Grocott keeps pointing out, I was a reluctant remainer. I was sceptical about the eurozone and the bureaucracy and unaccountability of the European Union, but on balance I wanted to stay in because all the challenges that we face are global: cyber, terrorism, trade and the environment. Being part of a larger bloc is, on balance, worth it. Therefore, my approach to this is pragmatic, not ideological. I admit to being confused by the ideological positions of the leaders of the major parties. We appear to have the leader of one party who is ideologically inclined to remain in the European Union but doing her best to get us out of it, and a leader of the other party who is ideologically inclined to remove us from the European Union who appears to be doing his best to keep us in part of it. I am confused about the ideologies that are supposed to be driving this on all sides of the House.

I believe that we should take what the noble Lord, Lord Cormack, called a common-sense position. It is possible that the vote on the final deal could be little more than a deal or no deal choice, where a rejection of the Government’s Motion would mean the UK exiting the EU with no deal on WTO terms, which would be the worst possible option for the UK. That is not according to me, in my lack of wisdom, experience, depth and analysis, but according to the Government’s own impact studies. I believe that we must insure against that, which is what Amendment 62 seeks to do.

The Secretary of State told the House of Commons that the agreement will deliver the “exact same benefits” as our EU membership. That is basically what the noble Lord, Lord Hamilton, said our objectives were. As it happens, that is also the commitment of the Opposition Front Bench, which has adopted it as one of its six tests. Amendment 62 simply safeguards this commitment by guaranteeing that we keep our current benefits until a withdrawal agreement has been reached that can match our objectives. As the noble Lord, Lord Cormack, said, it is a common sense, pragmatic amendment. It has no political motivation and no ulterior motive, other than the objective of preserving the best for this country. That is what this whole debate is supposed to be about.

It is my great pleasure to support Amendment 62. I am grateful to the noble Lord, Lord Cormack, for indicating that, if time constraints prevent us pushing this to a vote later tonight, we may come back to it at another stage.

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[Lord Hamilton of Epsom]

Is the negotiation with the EU not somewhat unique, because you are negotiating with 27 different countries?

[Lord Deben]

It is unusual to negotiate with 27 different countries, but I have negotiated with large numbers of different people on the other side. That is one thing that we just have to accept. It is, like anything else, a negotiation. If we think that it is so unique that we cannot do it, we should not have started the negotiation in the first place. It does not make any difference if you have a second negotiation: it is the same position that you had with the first negotiation. The fact that it is with 27 different countries makes no difference because it does not change from the first negotiation to the second. I do not think that my noble friend has a point on that.

The real issue is the fundamental fact: the amendment does not operate unless Parliament has voted in a particular way. The Government’s answer to the amendment must therefore be that they have a reason not to let Parliament continue to be involved after such a vote. The Government do not think that Parliament will take such a decision. They are very sure—and I have listened to government speakers again and again—that they will produce a result that will be cheered by Parliament. We will all be thrilled with what they have been able to achieve. I would be very suspicious if the Government’s answer is that they do not think they will get that sort of result and therefore do not want to get themselves into a difficult position. I am assuming that, whatever agreement they have, it will be a good one and this amendment will never come into operation.

The only reason for the amendment is to be a backstop for the circumstances in which the Government do not achieve what they tell us they can achieve and they therefore produce something that is so unacceptable that Parliament decides that it cannot accept it. The Government have to say, “What happens then?”. Unless they accept the amendment or some technically different one that suits them, their only answer can be, “We the Executive will decide”. That is why this is not about the European Union. It is about the powers of Parliament and it is why I am surprised at my noble friend Lord Hamilton, who was chairman of the 1922 Committee, who protected and defended the rights of Members of Parliament and who believes and believed in the nature of Parliamentary democracy. It is why I do not understand why this divides the House.

This should be something that both leavers and remainers—and those who wander between and those who are confused—all of us, should accept that we want Parliament to be in a position to accept and to decide. This will not work unless Parliament has decided that it does not want the agreed solution. The amendment will not come into operation unless that happens. Surely it is not too much to ask that the Government say, if we get to that point, that Parliament should have the right to ask the Government to go back and try again.