European Union (Withdrawal) Bill

Lord Lamont of Lerwick Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Lamont of Lerwick (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord Wigley, as it always is. It is also a pleasure to follow 185 other speakers; but I do not envy the Minister who has the job of summing up the debate.

Reference has been made several times to the Third Reading of the European Communities Bill in 1972. I have to confess that I, too, was another person who participated in that debate. My noble friend Lord Baker referred to the speeches by Michael Foot and Enoch Powell. He did not refer to my maiden speech, illustrating what the writer Mackworth Praed meant when he referred to,

“a maiden speech,

Which all men praise, but none remember”.

If I have a dagger to my heart, it is the opposite to that of the noble Lord, Lord Butler. The dagger to my heart is that I strongly supported our joining the European Community at that time. Quite why I and others over subsequent years developed increasing doubts about the European Union is illustrated by the Bill before the House, because it incorporates both visibly and when you dig into the Bill such a huge amount of EU law covering all sorts of things, from zoos to human rights, beaches, canals, immigration, extradition, foreign policy mechanisms, policy in north Africa and overseas aid. At the time of the 1972 debates, we were assured by the Law Officers that the supremacy of EU law was confined “essentially to economic matters”. Those were assurances that were repeated both by the Prime Minister in 1972—Ted Heath—and by Harold Wilson in 1975 at the time of the other referendum. Some 12,000 pieces of legislation later, and after Nice, Maastricht, Amsterdam and Lisbon, we can clearly see why many people like myself think they were mistaken to believe the assurances that we were given.

We had at the opening of this debate excellent speeches from the Leader of the Opposition the noble Baroness, Lady Smith, from the noble Lord, Lord Newby, and from the noble and learned Lord, Lord Hope. It was particularly excellent that they made it quite clear that they did not intend to obstruct this Bill and that they approached it in a constructive spirit. I totally agree with all three of them that there is great need and scope to amend this Bill in certain crucial areas.

A lot of concern has been focused on the so-called Henry VIII clauses and the number of statutory instruments that will flow from this Bill. This is, of course, the mirror image of the problem that we had when we joined the European Economic Community in 1972. Section 2(2) of the 1972 Act allowed EU law to have legal effect in the UK by delegated legislation. Some of that delegated legislation was by Order in Council and directives that totally bypassed Parliament. However inadequate the procedures that we are examining tonight are, they were even more inadequate in 1972. None the less I do not dispute for one minute that it is quite right that this House should seek to strengthen the safeguards, although some wild things were said in the House of Commons such as that this Bill could be used to alter the composition of the House of Lords or to postpone the date of the next election. The noble Lord, Lord Grocott, made a powerful speech. He referred to the powers of the House of Commons. Statutory instruments are not government by fiat; they are a parliamentary procedure. If you object to something, turn up and vote against it. As has been said in this debate, it is not easy to see an alternative to the use of statutory instruments. Given the huge volume of legislation, it would be quite impractical to incorporate it all by primary legislation.

These are serious issues, but some of the speeches that we have had, although serious, were not really about the merits of the Bill but criticised the Government’s tactics in the negotiations as a means of getting a second referendum on to the agenda and into the debate. The noble Lord, Lord Mandelson, who I see in his place, was rather flirtatious—rather triangulating—about this question. He said he had been of the opinion that the referendum ought to be binding but it was no longer axiomatic. As Clemenceau once said to Lloyd George after an ambiguous speech: “Pour ou contre? Oui ou non?”. We all know which way, in the end, the noble Lord is going to go on that question.

The Opposition present the phrase “the single market”, which they parrot all the time, as though by finding a phrase they had found a policy. They never go beyond the phrase to explain why a free trade agreement would be worse than membership of the single market. We know that if you export into another market without being a member of the single market you have to observe the rules, just as many countries do—many countries that have increased their exports to the single market more than we have, faster and to a larger extent. The noble Lord, Lord Mandelson, referred to the customs union. I wondered whether it was the same distinguished noble Lord, Lord Mandelson, the Commissioner who used to preach the virtues of free trade—that it was a spur to productivity and helpful to consumers—as he was defending without further argument, just by the phrase, a customs union that imposes very high tariffs on food and goods, including textiles and clothing, from poorer countries. I found that very difficult to comprehend.

I regret that this country has been so divided after this referendum and that some people have been so upset by the result, but that is no excuse for caricaturing Brexit as some dangerous extreme nationalism. Brexit is not a rejection of the values that we share with Europe, those values being human rights, democracy and the rule of law. Some Liberal Democrats were cynical and dismissive of the Prime Minister’s call for a special deep partnership with the European Union and called it just rhetoric, but why should we not have outside the framework of the EU co-operation between universities and in science and technology just as Switzerland does. Is Switzerland any less European by being outside the European Union? No, it is not.

Yes, Brexit is about self-government, sovereignty and making our own laws through our own Parliament rather than through a Parliament in which we have only 15% of the share of the votes. Millions of people voted for this because they believe in the nation state and that the nation state and democracy are two sides of the same coin. That is what people voted for and this Bill is necessary to facilitate that. It requires amendment and improvement but it should be given, expeditiously, a Second Reading.

European Union (Withdrawal) Bill

Lord Lamont of Lerwick Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

So if you break it down a bit further than the rhetoric you see that there is no such thing as this vast, wonderful, countervailing benefit to leaving the single market and the customs union, as the Government have been pretending. There is a fundamental falsehood here and we should use the opportunity that this Committee provides to try to expose some of the illusions which the Government have been putting forward, and to throw light in corners which the Government have been trying desperately to keep dark, of which this is undoubtedly one.

[Lord Lamont of Lerwick (Con)]

My Lords, I had not intended to speak in this debate but since it seems that no one else is going to speak up for the option of leaving the customs union, I thought that in the interests of attempted balance, at least, I should make a brief contribution.

I thought that the noble Lord, Lord Wigley, spoke with great passion—not, to me, entirely persuasively—and his sincerity was palpable. But some of the phrases he used do not really correspond with the reality of the situation as I see it. He talked about breaking our ties. It is not the Government’s intention that we should break our economic ties with the single market. He talked about this being an absolutist solution. No one is pursuing something out of dogma. We are trying to make an assessment of what we think is in the best interests of the country. I agree with the words that my noble friend Lord Hailsham used: we ought to be considering what is in the national interest. Noble Lords opposite may find it difficult to believe but that is actually what the Government are trying to do and what people on this side of the Committee are trying to do: come to a set of arrangements, once this decision has been made, that will maximise the welfare and interests of the country.

The noble Lord, Lord Wigley, was not comparing leaving the customs union with what the Government are trying to achieve. The Government are trying to achieve a free trade agreement with Europe. That is what you ought to compare the customs union with. In what respect would having a free trade agreement leave the country worse off than it is now? He was talking about a customs union. He did not make it clear but he said he was not disputing the decision to leave so he must have been talking about a customs union while being outside the EU. That is very different from being inside the customs union as a member of the EU. That is putting yourself precisely in the position of Turkey, which is inside the customs union and suffers all sorts of disadvantages, as I shall try to demonstrate.

[Baroness Kramer (LD)]

Perhaps I could make a suggestion to the noble Lord. If he were to go to 100 Parliament Street and sit and read the assessment, he would indeed see the comparison between being in a customs union and being in a free trade agreement. If he were to look at Hansard again and read about the damage to the economy that my noble friend Lord Newby described, he would find a great deal of that detail which explains that the free trade agreement route still leaves an unbelievably damaged country, in every region, especially the north-east, and in virtually every single industry sector.

[Lord Lamont of Lerwick]

There are calculations that say that. No doubt when the noble Baroness comes to make her speech, she will give arguments. I am not going to be persuaded by just a piece of paper with a statistic.

[Noble Lords]

Oh!

[Lord Lamont of Lerwick]

Noble Lords jeer but are they really going to say that a piece of paper with a statistic somehow analyses the problem? I put it to the noble Baroness that if you have a free trade agreement you have access to the market. What is the disadvantage? The disadvantage, which I will come to, is that you have to trade against that the inconvenience of rules of origin. That is what it comes down to: balancing the advantages of free trade against the costs of rules of origin.

Nobody has said that there are any advantages to leaving the customs union and I would like to make a few points. First, obviously, the customs union that we are members of—on certain goods, not all—has quite high tariffs on goods that particularly affect the lower paid, especially food, clothing and footwear. That is not an inconsiderable factor. Despite what the noble Lord, Lord Davies, said, being inside the customs union would make it impossible for us to sign free trade agreements with other countries. He was pooh-poohing that and thinks we will not be able to do it. But I put it to him if he looks at the record of quite small countries such as Singapore or Chile or a medium-sized country such as Korea, he will find that when you add up the GDP of the countries they have signed free trade agreements with, it is very much in excess of the added-up GDP of the countries that the EU has signed free trade agreements with. That is to say: these small countries, precisely because they negotiate on their own and do not have to take into account the arguments of 27 other partners, have been very effective at signing free trade agreements. Switzerland, for example, has a free trade agreement with China but the noble Lord thinks it will be impossible for us to have one with it.

[Lord Davies of Stamford]

My Lords—

[Lord Lamont of Lerwick]

I assume this is not a point of order but a point of information.

[Lord Davies of Stamford]

I am grateful to the noble Lord and would like to give a point of information to him. We already have a free trade agreement with South Korea, as a result of our membership of the European Union. Our leaving the European Union would result in our losing our free trade agreement with South Korea.

[Lord Lamont of Lerwick]

I do not know whether the noble Lord misheard me, whether I misspoke or whether he misunderstood. I was not talking about having a free trade agreement with Korea but about the free trade agreements that Korea has signed with other countries across the globe.

Another point about a customs union is that it is not just a question of collecting tariffs. A lot of regulations go with it and there is a vast range of non-tariff controls on goods—you obviously have to have definitions. We would not be able to divert from these at all if we remain members of a customs union, or even to depart from them in our own domestic market. If we did that, the goods that were allowed in which had circulated in the other countries of the customs union would be in contravention of them. Again, I put it that there are some advantages which have to be put into the balance of the argument for leaving the customs union.

One mystery about this amendment is that if you are in the customs union, there is the collection of the tariff revenue where the individual countries are allowed to retain only 20% of the revenue. The rest of it goes to the EU, so would we be outside the EU and paying 80% of the revenue on the external tariff to the EU? That does not seem to make a lot of sense.

It is also possible to be outside the customs union and to have a free trade agreement with the EU. That is precisely what Norway, Iceland and Liechtenstein do but of course, to come to the noble Baroness’s point, if that is regarded as a cost you have to offset against it the fact that you have rules of origin. People have pooh-poohed the technology argument but is that really going to be such an insurmountable thing to do? Switzerland exports per capita five times as much to the EU as we do, and it has to operate rules of origin on many sectors when it sells goods to the EU. That does not seem to have had any inhibiting effect.

[Baroness Kramer]

My Lords—

[Lord Lamont of Lerwick]

I would like to make a little more progress, as this is taking rather a long time. The rules of origin are one of the points for consideration. I know that a lot of British industry is worried about this but I noticed what Mr Azevedo, the Secretary-General of the World Trade Organization, said in a newspaper interview that he gave the other day. He pointed out that a large part of Britain’s trade, because we have a bigger percentage of trade with the rest of the world than some other European countries, already has to observe these requirements of documentation and rules of origin. He did not see that there would be a big problem in switching the rest of our trade to a similar regime.

I have also met representatives of some of the companies that run ports in this country, some of which operate on a WTO basis and some of which obviously operate on an EU basis. But when I talked to the management—I do not want to name them because they would not want to be too involved in political controversy—I was told that they did not see a huge difficulty in moving from one administrative system to another. Whether people agree with that or not, I put it to your Lordships that that is what the argument is all about: a trade-off between that and a free trade agreement with access to the market. It is not clear that the advantage is all one way.

[Baroness McIntosh of Pickering]

Does my noble friend not agree with me and the noble Lord, Lord Davies, on animal hygiene? Given the high levels that the Secretary of State has insisted our farmers will meet on leaving the European Union, how can we physically check the animals coming into this country when we leave if we have no customs controls at UK borders? It cannot be done by technology.

[Lord Lamont of Lerwick]

Even in Northern Ireland, we have some checks already. There will have to be checks, as there are checks throughout the European Union. I would be in favour of checks, but this is not an overwhelming argument against leaving a customs union.

I have one final point on the customs union. The noble Lord, Lord Wigley, seemed to be advocating being inside the customs union but outside the EU. That is the consequence of the amendment. That really gives us the worst of all worlds. Consider the position of Turkey. It has to agree to whatever free trade agreements the rest of the EU signs up to and has to have goods under those agreements circulating within its economy, even if it is totally opposed to that, because it has no say in negotiating free trade agreements between—

[Noble Lords]

My Lords—

[Lord Lamont of Lerwick]

I would like to finish a sentence without being interrupted. The EU negotiates free trade agreements but does not take into account what Turkey wants, and Turkey has no say. I will give way one last time; then I will make one other point about the single market; and then, the House will be relieved to know, I shall shut up.

[Lord Adonis]

The noble Lord referred to Turkey twice. On the first occasion when he referred to Turkey he said that there were all kinds of disadvantages in its customs arrangements with the EU from being in the customs union but not being free to strike trade deals beyond that. Why therefore does he think that Turkey has willingly and freely stayed a member of the customs union?

[Lord Lamont of Lerwick]

As the noble Lord knows very well, Turkey aspires—that aspiration may now be fading—to join the European Union, so being in the customs union was for many a halfway house to joining the EU, just as for noble Lords who tabled this amendment it is a halfway house to rejoining the EU. That is what their amendment is really about.

Lastly and briefly on the single market, the noble Lord, Lord Newby, was exhorting us all to go to the Treasury, look at the papers, draw the curtains and see the forecasts that have been made. Of course those documents should be taken into account, but there are many other studies made outside Whitehall that take a very different view. I refer him to the research by the academic Michael Burrage, who was at the LSE and at Harvard. He has done an in-depth analysis, which is published on the Civitas website, of the effect of the single market on the British economy and British exports. He has come to the conclusion that there is no correlation between the single market and the growth of trade between the UK and the EU.

Furthermore, he has pointed out something that people have acknowledged in these debates before—namely, that many non-members of the single market, countries outside the continent of Europe, have increased their exports to the single market much faster than Britain has increased its exports to the single market. So the idea that this great liberalising force has had a huge impact on the British economy is absolutely not proven. I make these points simply because the debate so far has been very unbalanced and, as my noble friend Lord Hailsham said, we ought to be considering, in a sober, balanced way, what is in the interests of our own economy now that the decision has irrevocably been made.

[Lord Liddle (Lab)]

On the customs union, as a pro-European in his youth, the noble Lord will be aware that the customs union was one of the founding acts when the European communities were established. I understand why Eurosceptics might make a lot of arguments that the European Union has become much more federal and political than the economic basis on which it started. But what, given the arguments that the noble Lord made so powerfully in the early 1970s in favour of membership of the customs union, now prevents us staying in the customs union on leaving the EU?

[Lord Lamont of Lerwick]

I am sure the noble Lord is not intentionally misleading the House when he talks about the arguments that I made so compellingly and eloquently in the 1970s. If he has been studying my maiden speech in the House of Commons, I shall be astonished. The reason why I supported the customs union in the 1960s was that we then lived in a world of very high tariffs, and the EEC was a liberalising influence in the 1950s and 1960s. It was only after the American Administration started cutting tariffs in the mid-1960s that the relevance of the EEC in tariff negotiations became much less significant.

Since the noble Lord wanted me to get my feet again, I will say that my attitude towards the customs union is very different from his. I remember a debate in which he spoke about not being in the single market. He explained how he had been to a German car manufacturer which had explained to him—I could not believe my ears—how Germany was manipulating car standards in order to keep out goods from other countries. The noble Lord thought that was admirable and we were very stupid not to be part of this racket. Well, I do not want to be part of it.

--- Later in debate ---

[Baroness Altmann]

My noble friend Lord Lamont and others have said that other countries manage without being in the EU, but their economies have not spent 40 years integrating and intertwining their industries and economies with the EU. The only country trading on WTO terms is Mauritania.

[Lord Lamont of Lerwick]

Could my noble friend tell me which country is more integrated with the EU: Switzerland or Britain?

[Baroness Altmann]

The industrial success of the British economy is based on the integrated supply chains. The jobs in Sunderland and across the automobile industry, as an example, and the biotech industry and pharma industry depend upon those integrations. The foreign companies that own those operations will be unable to compete if we do not have the same kind of access that we have now.

The Government’s evidence, which is being hidden from the public, shows that Brexit will be a huge cost, the size of which depends on the hardness of the Brexit. I urge colleagues on these Benches and across the House to wake up to the reality that we face and to at least support these amendments to stay in the customs union, the single market, the EEA or equivalent.

European Union (Withdrawal) Bill

Lord Lamont of Lerwick Excerpts

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

[Lord Adonis]

My understanding is that it is the policy of Her Majesty’s Government to put in jeopardy the free trade we currently enjoy in the European Union. If the Government were in favour of free trade, we would stay in the customs union and in the single market. These are straightforward, obvious propositions. The policy of the Government tends only towards reducing free trade with the single biggest set of trading partners that we have at the moment.

[Lord Lamont of Lerwick (Con)]

How is the noble Lord just about the only person in this House who does not know that the Government have stated over and over and over again that they want a free trade agreement with the European Union?

[Lord Adonis]

My Lords, the best free trade agreement to have with the European Union is the one that we are currently in. That is patently obvious. When you have an existing set of satisfactory arrangements, the idea that the policy for improving them is to undermine them is total nonsense.

I hope the noble Baroness will give us some assurance that she understands the significant security dimension that is at stake in our leaving the European Union and the importance of having close alignment on trade, not least so as not to weaken our collective security with our European friends and allies.

--- Later in debate ---

[Lord Hamilton of Epsom]

My Lords, before my noble friend the Minister winds up this debate, I would like to address the problem of him being constantly accused of not spelling out the Government’s position. We are mid-negotiations. Surely, if you are negotiating with the EU, it is very difficult to reveal your negotiating position. Our experience of dealing with the EU is that when we start to reveal our negotiating position, it immediately laughs at us and tells us that it is absolutely ridiculous for us to think that we are going to get these concessions, and that we are cherry-picking and want to have our cake and eat it and all this sort of thing. It seems to me that the Government are in a very difficult position. They have to hold this debate because we are processing the Bill through Parliament, but simultaneously we are trying to negotiate with the EU. We cannot reveal our position. The overall position is that nothing is agreed until everything is agreed.

[Lord Lamont of Lerwick]

I totally agree with what my noble friend is saying. It is very important that that point is made: it is not made often enough and could be made every time on every amendment. Does he agree that the most absurd question of all, which we have had several times on previous amendments, is for the Government to be asked what their fallback position is? How on earth can someone in a negotiation say what their fallback position is?

[Lord Hamilton of Epsom]

My noble friend is absolutely right. Of course, the EU is watching all this extremely closely because it is desperate to try to snarl up the whole process so that we cannot leave. The fact that a referendum involving a democratic vote was held on this is regarded by most people in the Commission as a sign of weakness. I think it was President Macron who said the other day that if a referendum were held on whether France should pull out of the EU, the leavers would win, but of course he was not going to allow a referendum. I am sure that that will go down in history along with other French expressions such as “Let them eat cake”.

--- Later in debate ---

[Lord Goldsmith (Lab)]

My Lords, we now come to the first group of amendments that deals with the exclusion from the Bill of the European Charter of Fundamental Rights. A number of amendments relate to the exclusion of the charter and to its specific provisions, so this may be a convenient place to debate the general principle of what the Government are proposing and the issues to which that gives rise. I shall therefore speak also to Amendments 14, 20, 25 and 34. Amendments 46, 47, 333 and 347 are consequential and I apprehend that there will be no need to say anything more about them.

The starting point for these amendments is the Government’s decision to exclude the European Charter of Fundamental Rights from the carryover into domestic law of existing EU law that the Bill is otherwise designed to achieve. As noble Lords know, and as the Government have been at pains to point out, the purpose of the Bill is to maintain legal continuity, certainty and stability for businesses and individuals by incorporating EU law as it stands into UK law. As the Prime Minister said in her foreword to the White Paper, the purpose is to ensure that:

“The same rules and laws will apply on the day after exit as on the day before”.


The White Paper goes on to explain that it will then be for democratically elected representatives in the UK, in this Parliament and the devolved Administrations, to decide whether to change that law after full and proper scrutiny and debate. This decision to bring EU law into UK law at the moment of exit is an essential part of the plan to provide clarity and is necessary, it is said by the Government, to bolster confidence and planning as the Brexit process comes into effect. The noble Baroness the Lord Privy Seal said at Second Reading that this is,

“about ensuring that people’s rights are maintained. It is vital to a smooth and orderly exit from the EU”.—[Official Report, 30/1/18; col. 1374.]

However, there is one glaring and deeply troubling exception to the proposal to bring EU law into domestic law so that it is the same the day after exit as it was the day before: the exclusion of the charter, in its entirety, from this exercise.

In another place, the Solicitor-General described the exercise as downloading EU law into domestic law, but what is not being downloaded is the charter. In another place, Sir Keir Starmer noted that although thousands of provisions of EU law are being converted into domestic law, and may have to be modified in some sense after that exercise, only one provision in the thousands on thousands of provisions of EU law is singled out for extinction, and that is the charter. That gives rise to a conundrum.

[Lord Lamont of Lerwick]

Is the noble and learned Lord going to come on to explaining why it was, when he was Attorney-General and working with Tony Blair, he worked so hard to try to get the charter excluded from the Lisbon treaty? Indeed, they thought they had achieved such an opt-out from the treaty until it was overruled subsequently by the European Court of Justice. Surely what we are doing now is trying to fulfil the objective that he himself had in mind.

[Noble Lords]

Oh!

--- Later in debate ---

[Lord Goldsmith]

The noble Lord knows that that is not the position in relation to the principles: they are guidance and aspirational. I am not spending a lot of time on them, although some of the NGOs have. I will give one example. There was a case in which the EU’s proposed legislation in relation to plain packaging of tobacco products was challenged in the courts on the grounds that it contravened freedom of expression. One of the things that the court looking at that noted was that the charter provided for a high degree of public protection in terms of health. I hope that all noble Lords agree with that sentiment, whether or not they agree with the result of the case. That is an example of where the principles come into effect.

[Lord Lamont of Lerwick]

I apologise for interrupting the noble and learned Lord a second time. We have listened to what he has said with great care. He has spoken for 34 minutes. He said that he would answer the question I posed at the very beginning of his speech—namely, why he had altered his mind when previously he had tried to keep the charter out of the Lisbon treaty, when he then said that it ought to have no direct domestic effect. Why has he changed his mind?

[Lord Goldsmith]

My Lords, I was about to come to that and I am grateful to the noble Lord.

--- Later in debate ---

Perhaps I may give a concrete example that may trouble your Lordships. As I understand the policy of Mr Corbyn and his colleagues, it is to nationalise a number of public services and utilities, and he asserts that this can be done at nil cost. This implies either no compensation for the owners of the assets or compensation that is calculated in a wholly derisory way so as to produce nothing or near to nothing.

[Lord Lamont of Lerwick]

The reason that the Labour Party says that nationalisation of the railways would cost nothing is that the shadow Chancellor thinks that financing things by bonds is costless. That is what he has said.

--- Later in debate ---

There is no reason why the United Kingdom should not be able to continue to apply the rights in the charter to retained EU law. If, as has already been said in this debate, at any future stage it is thought that the rights go too far, that is a matter for Parliament, in the normal process of primary legislation, to change. What we seek to do in this case is to ensure that on the day after exit the law is the same as it was on the day before exit. It is what the Government say they want to do, and that is why I encourage the Government to accept the spirit and the letter of these amendments.

[Lord Lamont of Lerwick]

My Lords—

--- Later in debate ---

[Lord Taylor of Holbeach (Con)]

It is the turn of my noble friend.

[Lord Lamont of Lerwick]

My Lords, I shall speak to Amendment 14, the effect of which is to retain the charter as part of domestic law and to retain EU law under which claimants would be able to have domestic legislation struck down on the basis of incompatibility with the charter. Some noble Lords have expressed the view that they were baffled by the exclusion of the charter from this legislation, but I felt that the arguments were put very simply and cogently by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, at Second Reading when he simply pointed out that the charter is only one part of our extensive framework of human rights, that there would be a risk of confusion because of conflict with the ECHR and that what this was doing was complicating the situation to no good purpose.

Furthermore, the Secretary of State for Exiting the European Union has produced a memorandum showing how existing rights are being provided for in the legislation and in retained law. He has also gone further and said that if anyone can provide specific examples of rights that are not provided for, he will give the matter due consideration. Various people have suggested various things that may or may not be suitable for inclusion, but they will no doubt be considered by the Secretary of State and could be considered for primary legislation.

I asked the noble and learned Lord why he had changed his mind about the incorporation of the charter, which he and Prime Minister Blair strongly opposed in the Lisbon treaty. I do not want to go over that, as I think I made my point, but I suggest to the noble and learned Lord that he had very good reasons for excluding it, and that now is an opportunity—

[Lord Goldsmith]

In fact, this country accepted that the charter would become part of EU law in the Lisbon treaty—it is the opposite of what the noble Lord said.

[Lord Lamont of Lerwick]

Against the noble and learned Lord’s will. There was also an attempt to get an opt-out, which the European Court of Justice said was not valid. I see that the Minister is agreeing with me. I believe that is a correct account of what happened. It was struck down. The case in which it happened was, I think, Aklagaren v Hans Akerberg Fransson.

[Lord Pannick]

Would the noble Lord accept that there are many areas of EU law which this country has opposed but which have nevertheless become part of EU law? This Bill seeks to exclude none of them from retained EU law, other than the charter. Why is that?

[Lord Lamont of Lerwick]

That is very much my argument. For reasons that I wish to develop, I agree very much with the noble Baroness, Lady Deech, and what was said by my noble friend Lord Faulks about the confusion and conflict that this will cause between the role of the European Court of Justice and our own courts. The President of the Supreme Court has already called for further clarification of the relationship the Supreme Court will have with the European Court of Justice. It seems to me, for reasons I am about to give, that this would be made even worse if we incorporated the charter into the Bill and into UK law.

The retention of the charter would lead to real problems of uncertainty and confusion. Above all, retaining the charter would give the ECJ even more continued influence over our courts. I accept what the noble and learned Lord has said, that there is going to be a relationship for a while with the jurisprudence of the ECJ, but incorporating the charter will give much more opportunity for what people have called judicial adventurism from the European Court of Justice, as it continues to expand the interpretation of the charter. This is not an obsession of Conservatives. I draw the Committee’s attention to what the late Lord Bingham, I think, said in evidence to the House of Lords EU Committee in 2016. He said that although,

“the European Court of Human Rights is a very benign institution … the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.

That is a reference to the expansionist activities of the ECJ. The charter, as many people know, is extremely loosely worded. The risk of leaving the charter in place is that it allows the ECJ, while it still has jurisdiction over us and our Supreme Court, to expand the charter into new areas. I am not suggesting that the rights we have are frozen for ever or should not be expanded, but merely that that is something that should be decided in this country by our Parliament.

I am also concerned, because of this and the expansion of activities of the ECJ, that if the charter were incorporated our courts would acquire the power to strike down statute on the basis of incompatibility with the charter, which is the point that the noble Baroness, Lady Deech, was making. The noble Lord, Lord Pannick, referred to the Factortame case, which was a notorious example where an Act of Parliament was actually struck down. We do not want to create another situation in which domestic courts can strike down Acts of Parliament.

It is the European Court of Justice that interprets what the charter means within the European Union, so if the charter is incorporated into law, what relationship is then going to exist between the Supreme Court and the ECJ? As the ECJ continues to develop its interpretation of the charter, we would be on a road where we had to take it more and more into account. On the basis of what has been said, we must avoid that confusion.

If there are gaps in the rights, we have an opportunity to incorporate them with primary legislation. For example, people have been saying in some of the debates that there are various matters relating to the environment that are not covered. However, we will have a new environment Act and a new environment agency. That seems to me to be the way to cope with any rights that are not fully covered, and it is far better to avoid the confusion of incorporating the charter into UK law.

European Union (Withdrawal) Bill

Lord Lamont of Lerwick Excerpts

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

[Lord Cormack]

My Lords, I have one simple message: do not tie the hands of those negotiating on your behalf.

[Lord Lamont of Lerwick (Con)]

Will my noble friend at least acknowledge that if his concern is that the Government will be boxed in, he should be aware that the Bill allows Ministers to extend the date by order?

[Lord Cormack]

Yes, but it is therefore contradictory to have a specific date written in the Bill because the Government are answerable to Parliament and Parliament is sovereign, as we have said many times over the past few weeks; it seems like an eternity. The one message we should convey is that we should not seek to tie the hands of those who are negotiating. We will do so if we put a particular date in the Bill. Failure to reach agreement by that date will then be trumpeted abroad as a failure. None of us wants that. There must be flexibility.

European Union (Withdrawal) Bill

Lord Lamont of Lerwick Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Wigley (PC)]

My Lords, I support Amendment 1, moved so persuasively by the noble Lord, Lord Kerr, and Amendment 4. I want to speak briefly to Amendments 2 and 5 in my name, which are coupled with them and essentially seek the same goal.

Noble Lords may remember that in Committee I moved the very first amendment on the issue of maintaining a customs union with the EU after our membership ceases. We had an excellent debate at that stage so I will not repeat the detailed arguments, save to remind the House of one central point: having tariff-free trade in goods with the European Union and the 56 countries with which the European Union has an agreement is fundamentally important—not only to Wales but throughout the UK—to our manufacturers and farmers. It also opens the door to resolving the Irish border question, as has been said.

I accept—reluctantly—that we are leaving the European Union. That is not the issue in this debate. The question is how we leave without weakening or severing our vital trade links. By passing either of these amendments, we give MPs an opportunity to return to this central issue. Without such an amendment, they will be unable to do so. They need such a facility because so much has changed in the time that has elapsed since they passed this Bill last year. We must enable them to fine-tune the Bill to meet the requirements of exporters, manufacturers and farmers. MPs will have the last word, and rightly so, but by passing either amendment we give them the opportunity to endorse a better Bill that is fit for purpose and more acceptable to those whom it affects. I urge colleagues on all sides to unite in passing such an amendment and I urge the Government to accept the outcome.

[Lord Lamont of Lerwick (Con)]

My Lords, both the noble Lord, Lord Kerr, and my noble friend Lord Patten made extremely powerful speeches. Both of them referred to trade with the EU representing 50% of our exports. I think that the figure is actually a little lower than that, nearer 45%; I make that point not to argue over the absolute figure but the direction of travel.

One of the points that was not made in either speech is how the pattern of our trade has been changing and a much higher proportion of our trade was with the EU 10 or 15 years ago. This is because Asian markets and other countries—I agree that they are all small markets at the moment—have cumulatively been growing as a share of our trade. The question in considering the amendment is, which is better for the future trend of our trade: remaining in the customs union or the Government’s alternative—which the noble Lord, Lord Kerr, did not really put forward—of a free trade agreement with the EU? We are talking not just about the customs union, but the customs union while being outside the EU—that is, being in the customs union but not an EU member—which is a very different matter, for reasons that I will come on to.

We have to be clear in our minds about the difference between a customs union and a free trade area. A customs union has free trade between its members but an external tariff and rules against non-members. A free trade area has reduced or zero tariffs between its members but allows individual members to have differing external tariffs and non-tariff controls on imports from non-members. The noble Lord, Lord Patten, referred to the question of rules of origin—that is, goods that come from outside the free trade area but which have to qualify to go into other countries by having a certain percentage of the content being made locally. The EU is a customs union but has free trade relations with European states outside the EU, such as Norway, Iceland and Lichtenstein. This means that, despite being inside the single market, they have control over external tariffs and the administrative costs are greatly reduced by modern customs procedures, such as electronic pre-clearance and trusted trader arrangements.

In his speech on the customs union, the noble Lord, Lord Kerr, concentrated just on what happens at the border. I would argue that a customs union is not just about tariffs; it has implications for the single market. It is related to the whole issue of the rules and definitions that make up the single market. This is made very clear on the European Commission’s website, which defines the customs union like this:

“The Customs Union is a foundation of the European Union and an essential element in the functioning of the single market. The single market can only function properly when there is a common application of common rules at its external borders … These common rules … go beyond the Customs Union as such—with its common tariff—and extend to all aspects of trade policy, such as preferential trade, health and environmental controls”,


agriculture and fisheries,

“the protection of our economic interests by non-tariff instruments and external relations policy measures”.

European Union (Withdrawal) Bill

Lord Lamont of Lerwick Excerpts

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

[Lord Howarth of Newport (Lab)]

My Lords, the noble Lord, Lord Howard of Lympne, is absolutely right to draw our attention to the constitutional dangers that lurk within the amendment. It goes too far to bind the Government.

I think it is time that we drew breath. We have had a very exciting couple of weeks but it is time to think about the respective roles of the Executive and Parliament and of the House of Commons and the House of Lords, as other noble Lords who have spoken have done. Parliament is not the Government and it should not try to usurp their role. Of course the Government emanate from Parliament and are accountable to it, the Government should be advised by Parliament and are invigilated and sustained by it, and if they lose the confidence of Parliament then they fall, but the Government are not the same as Parliament and Parliament is not the same as the Government. We have a separation of powers. The Government are the Executive, and Parliament neither can nor should act as the Executive.

It was improper and inept for the Government ever to suppose that they could bypass Parliament in dealing with Brexit. Of course there must be a meaningful vote, but it is for the Government to negotiate, listening all the time to Parliament—Parliament constantly proffers its advice—and then eventually to submit the deal that they have negotiated to Parliament for its approval or otherwise. You can call it a take-it-or-leave-it vote, but nobody could say that that is not a meaningful vote.

Dominic Grieve, someone for whom I have the greatest respect and the warmest regard, justified his amendment to Clause 9, requiring that the final terms of the deal should be approved by a statute, on the basis that it was essential to prevent the Government exercising the biggest Henry VIII power ever. That was an understandable and legitimate motive, but to require that the deal should be approved by the laborious process of statute seems to me to go too far in an inappropriate direction. Parliament cannot negotiate. Parliament certainly cannot negotiate by legislation or amendment. It cannot change the deal, it cannot bind the European Union. It can bind the Government in an excessively narrow straitjacket, and that would be an extraordinarily unhelpful thing to do in the national interest. The process of legislating such a statute would serve only to prolong the uncertainty about which everyone complains.

Amendment 49 would develop the Grieve amendment and take it further. It repeats the requirement for a statute already in Clause 9, but doubles up with the requirement for a resolution. It then goes further. Proposed new subsection (5) states that if the House of Commons does not approve the draft terms, the Government “must follow any direction” given by the House of Commons. That seems to me the most extraordinary provision. Of course, legislation routinely binds Governments for the future, but it does not tie their negotiating hand. It should not, specifically, tie this Government’s hands as they seek to perform this particular complex, sensitive, immensely difficult, crucial set of negotiations.

The resolution could say anything. It could say, “Go back to the negotiating table”. It could stipulate that the Government deliver what is undeliverable. It could rescind Article 50. It could call for a general election or another referendum. These are exceedingly important matters where the Government should listen to Parliament, but the Government should lead and Parliament should respond.

If we reflect on the relationship between your Lordships’ House and the House of Commons and our respective responsibilities, surely it is our responsibility to advise the House of Commons, to advise the Government. In the words of the noble Viscount, Lord Hailsham, it is to suggest, to argue, to explain. It is no part of this House’s responsibility to seek to manipulate the House of Commons or the Government, to seek to choreograph future proceedings of the House of Commons, and certainly no part of our responsibility effectively to pull the rug from under the Government.

If we pass this amendment and some of the others on the Marshalled List today, I fear that we shall be getting too big for our constitutional boots, and many of our fellow countrymen feel the same.

[Lord Lamont of Lerwick (Con)]

My Lords, my noble friend Lord Hailsham made an eloquent and powerful speech. If I had closed my eyes, I might have thought I was listening to his father. However, despite his eloquence, he did not go very deeply into the detail of his amendment. I wish to support what the noble Lord, Lord Howarth, and my noble friend Lord Howard said.

The first part of the amendment, proposed new subsections (1) to (3), it might be argued, roughly and broadly mirror what the Government themselves have outlined: a resolution in the House of Commons, the withdrawal Bill, primary legislation and trying to get a vote before the European Parliament has voted. But my noble friend Lord Hailsham then inserts a series of triggers with rigid dates. If the vote of approval has not taken place by 30 November, if the Act of Parliament has not received Royal Assent by 31 January, and if the withdrawal agreement has not been agreed by 28 February, a whole lot of things happen. As the noble Lord, Lord Howarth, highlighted, what happens is that the House of Commons or Parliament effectively takes over negotiations and can impose conditions. This is a most extraordinary thing. It has never been the case before that Parliament has dictated how a Government should negotiate a treaty, but this is what would happen under the provisions of the amendment. As the noble Lord, Lord Howarth, said, Parliament could dictate all sorts of things: it might dictate that the Article 50 notice be withdrawn or it might dictate, although it would perhaps be subject to dispute, that Article 50 was extendable. This would be for Parliament to assume extraordinary powers in a way that has never happened before. It would be a major constitutional innovation.

--- Later in debate ---

[Lord Newby]

My Lords, I said that during the debate that was said. The truth is that, if you ask the people to have a vote, Parliament, having given them a mandate to have a vote, politically cannot come back and say, “Thanks very much, you’ve had your vote but, actually, we are going to ignore it”. Everybody knows that that is not realistic politics.

[Lord Lamont of Lerwick]

Does the noble Lord remember that in 2008, when other people were not advocating a referendum and there was no renegotiation, Nick Clegg put forward the idea that there should be what he called a real referendum—an in/out referendum? If that had come to pass, what would the Liberals have done if the people had voted no and wanted to leave, and there was no renegotiation? Would that have been binding or not?

[Lord Newby]

My Lords, that was in the completely different context of the Lisbon treaty. In previous debates in your Lordships’ House, a number of noble Lords have thrown at me what former leaders of my party have said. I would just ask the noble Lord, as we are talking about former leaders, whether he agrees with his former leader, Sir John Major, when he made a speech earlier this year and said, of this debate:

“Peers must ignore any noises off, and be guided by their intellect and their conscience”.


To revert to the point that I was attempting to make, on Brexit Parliament gave the initial decision to the people; it is in no position now to take a stand on parliamentary sovereignty on this issue. On Brexit, the horse has well and truly bolted.

It is sometimes argued that people are fed up with Brexit and want to leave it to Parliament and get on and implement it, but that is simply not the case. All recent polling shows that a majority of people now want to have a final say. A poll by YouGov earlier this month, for example, showed that by a majority of 44% to 36% there was support for such a vote. So this is not just the remoaners and, with figures like that, sadly, it is not just the Liberal Democrats. It is a view very widely shared, including by government supporters. In a recent poll of Conservative voters, by a majority of 43% to 34%, almost identical to that of the country as a whole, they said that they now wanted a vote on the issue.

So, what are the objections to the proposed amendment? First, it is argued that it is too soon to put such a provision into legislation. However, just look at the timetable. This Bill will receive Royal Assent sometime in June at the earliest. The Government believe that they will negotiate a withdrawal agreement by the end of October, a claim confirmed by the Secretary of State for Exiting the EU before a Commons Select Committee last week. If we take the Government at their word, this means that the approval resolution, provided for in the amendment which the House has just passed, could be brought before Parliament within 20 weeks of the Bill gaining Royal Assent and before any further legislative opportunity to provide for the referendum option had presented itself.

Far from being premature, this amendment is extremely urgent. It is argued by some members of your Lordships’ House that, if the Commons were to reject a Brexit deal, the correct next step should be a general election, rather than a referendum. However, this is a poor alternative. As last year’s general election showed, the issues which dominate a campaign at the start are sometimes very different from those which do so at the conclusion. At that election, polling showed that, in the last crucial days of the campaign, Brexit was supplanted by terrorism as the most important issue in many people’s minds. In any new election, health, education, jobs, housing, the qualities of the rival leaders, and issues which unexpectedly flare up in the campaign itself—as terrorism did in last year’s—would determine how many people voted. An election is, therefore, an extremely unsatisfactory mechanism for taking the people’s view on any single issue.

It is argued that a referendum would be too divisive but, in the circumstances of the Commons voting against a Brexit deal, to deny the people a final say would be even more divisive.