COP 26

Lord Lilley Excerpts

Wednesday 18th November 2020 Lords Chamber

[Lord Callanan (Con)]

The noble Baroness makes some valid points, but, as I am sure she is aware, all campaign spend will be released in line with the usual Cabinet Office spend data publications. The idea of the campaign is to work through partnerships where possible, but further support may be needed working with other groups, and we will endeavour to take the campaign forward in as many different areas as possible.

[Lord Lilley (Con)]

My Lords, I refer to my interests in the register. Before your Lordships’ House is submerged in a tsunami of uncosted virtue signalling, can the Minister confirm that zero carbon will cost trillions of pounds? In the privacy of this Chamber, may I raise the politics of this? The further north you go, the cooler it is and the higher people’s heating bills are. People’s incomes are lower, so more is absorbed by energy costs and more jobs depend on energy. If they are less receptive to campaigns telling them to become vegetarians, ride bikes and forgo foreign holidays while being unable to sell their cars in 10 years’ time, will this help retain the blue-wall seats?

[Lord Callanan (Con)]

I thank my noble friend for his question; I know he takes a close interest in these matters. The important thing to do is to convince people across the country that there are an awful lot of jobs riding on this as well, and that pursuing green initiatives, as we are doing with the 10-point plan that was announced today, will enable thousands of jobs to be created in many of the communities that he is talking about.

United Kingdom Internal Market Bill

Lord Lilley Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

As I close, I appeal to noble Lords to take into account previous commitments, pledges, promises and agreements, from the EU itself and Her Majesty’s Government, made before and after the Northern Ireland protocol was introduced. Let us please have balance with regard to the need to ensure that unionists as well as nationalists and those of no political affiliation are comfortable with the arrangements that come into force after the transition period ends.

[Lord Lilley (Con)]

My Lords, we have listened to many moving and powerful speeches from right reverend Prelates and noble and learned Lords about the abstract principles raised by this Bill and, particularly, by Part 5. They are very important principles. It is a particular privilege to follow the speech of the noble Lord, Lordusb Dodds, which has been the first to spell out the practical implications for people’s livelihoods if the withdrawal agreement is not applied in the spirit of the promises made by both sides—the United Kingdom as well as the European Union—to all the people of Northern Ireland. There are practical and constitutional consequences, which somehow have escaped the notice of every single noble Lord who has spoken up to this moment.

At Second Reading, I asked a question which I make no apology for repeating: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or with its own fundamental constitutional laws? No one in your Lordships’ House has explicitly addressed that question. Maybe that reflects how difficult our hybrid procedures make the proper and effective interchange of ideas and debate in this House, but maybe it was also because most noble Lords have framed their positions in absolutist terms: we must obey international law, full stop.

By implication, there can be no circumstances in which legal obligations under one treaty can clash with those under another or with a country’s fundamental domestic laws. However, as I pointed out before, that is not the view that other countries take. The European Court of Justice itself spelled out that, although the European Union seeks to comply with its international legal obligations,

“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.

It also says that,

“although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty.”

I do not think it is wrong to say that. If I wanted to carry forward the European Union, I would have that order of priorities, but I want to carry forward the United Kingdom, so my priorities are put first and foremost—the fundamental constitutional laws of this country, when and if they clash with an international treaty.

The German Constitutional Court has ruled that if treaties—even European Union treaties—conflict with basic German constitutional law, the latter prevails. The strange thing is that, when the EU or Germany set aside any aspect of international law that clashes with their fundamental internal laws, no one suggests that they are putting at risk the entire international framework of law or rendering themselves international legal pariahs. Why is it so contentious when we suggest that we might need to do likewise when it is not contentious for them?

Although no noble Lord in the debate explicitly answered my questions or addressed these issues, the noble and learned Lord, Lord Judge, who opened both this debate and the debate on his amendment to the Second Reading Motion expressing regret, implicitly addressed the issue in his summing up of the debate. He acknowledged:

“‘We may need these powers at some stage.’ Maybe we will; I hope not. If we do, it is perfectly open to the Government to come back to us, to Parliament, to put before us emergency legislation and … proposals, and, if they are satisfactory, to endorse them.”—[Official Report, 20/10/20; col. 1431.]


But surely, once we accept that powers regarding overall aspects of the withdrawal treaty may be necessary in future, the enabling measures in Part 5 cannot be wrong in principle. Whether we take the power now or reserve doing so for a later date in a separate Bill becomes a procedural and tactical issue, not one of principle. My own view is that having the enabling power on the statute book makes it less likely that the European Union will refuse to negotiate “in good faith” and with respect for the other party’s “legal order”—wording used in our agreement with the EU—on the issues in Part 5 and the planned finance Bill.

I have the greatest respect for the noble and learned Lord, Lord Judge, and not just for his mastery of the law but for the objective and non-partisan way in which he approaches these issues and every other. He has been kind enough to correspond with me about these issues. Like him, I hope we never need to invoke the powers in Part 5 to override the withdrawal Act, be they the powers in this Bill or in the emergency legislation that he envisages. But like him, I recognise we may need to if the EU refuses to resolve these issues by negotiating in good faith and out of respect for our internal legal order—particularly, the Act of Union, which guaranteed free and unfettered trade between Great Britain and Ireland, and the Belfast agreement, which promised no change in the status of Northern Ireland without the acceptance of both communities.

Like the noble and learned Lord, Lord Judge, I accept that if such a problem does emerge, we should try to resolve it by the procedures within the withdrawal treaty. If we cannot agree in the Joint Committee, those would most obviously include activating Article 16. As the noble and learned Lord, Lord Keen, said, these powers in this Bill will be necessary even if we invoke Article 16 of the treaty. That would not enable the Government to act without legislative authority, so it is important to have that legislative authority on the statute book—indeed, it is essential. Again, like the noble and learned Lord, Lord Judge, I hope it will not be necessary.

There ought not to be any conflict between the withdrawal treaty and our fundamental laws, as long as both sides negotiate, as they have promised to do, the remaining internal contradictions in the withdrawal Act in good faith and with respect for each other’s constitutional orders. I was not alone in mentioning the potential clash between the withdrawal treaty and our fundamental laws. So did my noble friend Lord True in his brilliant closing speech at the end of the Second Reading debate, when he referred notably to the need to uphold the Act of Union, which ensures unfettered trade between parts of the United Kingdom, and the Belfast agreement.

I hope noble Lords will ponder these things and, most of all, the summing up by the noble and learned Lord, Lord Judge, that it may be necessary—though let us hope it is not—for us to resolve a conflict between the withdrawal treaty and the Act of Union and Belfast agreement. It is sensible to have that legislation on the statute book. But we are not, by doing so, rendering ourselves international pariahs or doing anything that any other country would not do in similar circumstances.

[Lord Clarke of Nottingham (Con)]

My Lords, it is a rather remarkable experience, as quite a new Member of this place, to find myself taking part in such an extraordinary and unusual debate, loaded with such significance and ethical and legal issues. It was a pleasure at Second Reading to follow a debate in which the eloquence of the noble and learned Lord, Lord Judge, the noble Lord, Lord Howard, and many others was extremely persuasive. I followed their speeches, which came to a dramatic conclusion when I found I was taking part in Divisions in which the Government suffered their biggest defeat in this House for over 20 years on a resounding and distinguished cross-party basis.

My first reaction was to think that, before we got to this stage, the Government would react in some constructive, positive way. I may be new here, but I have been a few years in government, and in the past, the problem would have been regarded as a fairly extraordinary one. Efforts would have been made to give the unfortunate Minister, who had drawn the short straw of defending the Government in this House, some material and opportunity to persuade, reach a compromise and perhaps move to the more pragmatic approach of the noble Lord, Lord Lilley, because this should all be resolved in a common-sense way.

--- Later in debate ---

The second group of those who defend what is happening are those who say, “Actually, there is no law-breaking.” The noble Lords, Lord Naseby and Lord Howard of Rising, who is, sadly, not in his place, and the noble Baroness, Lady Couttie, made plucky efforts to say there is no law-breaking. Your Lordships will recall the much missed noble and learned Lord, Lord Keen: he suggested there was no law-breaking, and he got a pretty bloody nose from the Government for that. He was told that was wrong, because Brandon Lewis was sent out to assert yet again that there was law-breaking, as he proudly said. I will accept the word of the Government themselves that there is law-breaking, and not those of their defenders who say that there is not.

[Lord Lilley (Con)]

Would the noble and learned Lord accept—

[Noble Lords]

Order!

Clean Growth Fund

Lord Lilley Excerpts

Wednesday 28th October 2020 Lords Chamber

[Lord Lilley (Con)]

My Lords, I draw attention to my interests in the register. I sincerely hope that the fund will succeed in investing in companies that grow without subsidy, but does my noble friend recall that, in the Government’s Cost of Energy Review, Professor Dieter Helm concluded that the best part of £100 billion spent so far on renewables has been wasted because, as he warned, Governments are not very good at picking winners, but

“losers are very good at picking governments”?

[Lord Callanan (Con)]

That is indeed a good quote and I agree to a certain extent with my noble friend, but this is a commercial investment, run by a commercial fund manager. My noble friend will be pleased to know that the Government are playing no role in the selection of the investments. There are private sector investors alongside us and the fund manager is running the fund on a commercial basis.

United Kingdom Internal Market Bill

Lord Lilley Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Lilley (Con)]

My Lords, I congratulate the noble Baroness on her excellent maiden speech and look forward to hearing both her spoken and her musical words in future. As a non-lawyer, I enter this arena like a Christian facing a pride of angry legal lions. This is made worse by the fact that they have already captured my own archbishop. I am armed only with a simple question: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or its own constitutional law? The only reply I have received so far is: “You shouldn’t have signed the withdrawal treaty”.

That might work in a student debate, but it fails to address my question, so let me answer it myself, not in my own words but in those of the European Court of Justice. In the Kadi case, the court affirmed that, although the EU seeks to comply with its international legal obligations,

“it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.

Likewise, the German constitutional court has ruled that if treaties, even EU treaties, conflict with German constitutional law, the latter prevails. Of course, British Governments have disapplied aspects of international law, the most famous example being the United Nations Convention on the Law of the Sea, 15 days after it came into effect, when the future Lord Diplock ruled that

“the Crown has a sovereign right, which the court cannot question”,

to do so. Moreover, in Section 38 of the withdrawal Act, Parliament explicitly foresaw that it might need to set aside the direct application of the withdrawal treaty, as this Bill permits.

However, no one ever suggested when they disapplied parts of the conflicting laws that the European Court of Justice, the German court or previous UK Governments had broken the law—until Brandon Lewis uttered those fatal words. These have been seized on as a weapon by some, and proved a stumbling block for some of my closest friends, but I believe they should be disavowed. This raises the question: are there potential conflicts between obligations under the withdrawal treaty and our fundamental constitutional laws? There are certainly many internal contradictions within the withdrawal Act, but we ratified it because it contains a mechanism—the joint committee—in which both sides are committed to resolve outstanding issues in good faith and respecting each other’s legal order. So, given good faith and mutual respect, there should be no conflict with our legal order, the pillar of which is the Act of Union between Great Britain and Ireland, which pledges that “all prohibitions and bounties”—that is, tariffs—

“on the export of articles … of either country to the other shall cease.”

This is buttressed by the Belfast agreement, which promises no change in that union without the consent of both communities.

However, the EU has been showing little evidence of good faith, insisting on applying the entire EU customs code, which would mean that no goods could move from Northern Ireland to Great Britain without an EU export declaration—something my noble and learned friend Lord Clarke used to say was one of the disadvantages we would face in all our trade once we left the customs union. That is contrary to both the Act of Union and Article 6 of the protocol, which says:

“Nothing in this protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.”


In the other direction, the withdrawal treaty commits both sides to agree before the end of the transition period the definition of goods which are at risk of crossing into the Republic. The EU has implied that, if it declines to agree, the UK will have to levy EU tariffs on all goods going from Great Britain to Northern Ireland. Both these results would conflict with the Act of Union and the Belfast agreement. Happily, because of this Bill, the EU seems to be pulling back from both these positions. I hope that good faith will prevail and we will not need to implement the clauses in this Bill, but it would be irresponsible to leave this country unprepared by rejecting them.

Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) Regulations 2020

Lord Lilley Excerpts

Friday 9th October 2020 Lords Chamber

[Lord Lilley (Con)]

My Lords, these regulations relate to, among other things, masks. Common sense has always suggested that, since Covid is transmitted by droplets, wearing masks will to some degree reduce its transmission. However, we have not been led by common sense but by the science. Your Lordships will recall that for the first two or three months of the crisis, we were told that there was no scientific evidence suggesting we should wear masks; indeed, they would be unhelpful because they encourage people to be overconfident and to touch their eyes and face. In May, we were told that they would do no harm and might be useful. In June, we were advised but not required to wear them. In July, wearing them in shops was made compulsory. In August, that was extended to other places. In September, regulations made it a punishable offence to prevent people wearing face masks. The latest regulation imposes a fine of up to £10,000 for anyone who even fails to tell their customers to wear a mask.

Throughout this journey, from discouraging the wearing of masks to hefty punishments for not encouraging their use, we have been told that we are being led by the science. My aim is not to discredit science—I studied it at Cambridge and revere the scientific method. Nor do I mind having to wear a mask over my face; but I do mind having the wool pulled over my eyes. The simple truth is that the reason we were initially told we should not wear masks was that there was a shortage of masks and the scientists, civil servants and politicians felt they should be reserved for medical staff. I hope we will learn from this extraordinary saga that when the common sense conflicts with “the science”, we should subject that scientific advice to rigorous scrutiny, and when we are told there is no evidence for something, we should not conclude that there is evidence against it.

Trade Bill

Lord Lilley Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 8th September 2020 Lords Chamber

[Lord Lilley (Con) [V]]

My Lords, I congratulate my noble friend and the right reverend Prelate on their excellent maiden speeches, and I welcome the Bill; it is necessary and workmanlike. But neither critics nor supporters should exaggerate its importance. Critics claim that it would lead to privatising the NHS, undermine environmental standards and threaten animal welfare. They have nothing to fear. Those things are outside the scope of the Bill. The Government certainly have no such intentions, and Parliament would not let them happen. But there is a tendency on all sides of the debate to exaggerate the importance of trade deals. They are useful and desirable, but their impact is much smaller than generally thought.

This was brought home to me when I was Trade Secretary. I had to implement the single market programme, held as the deepest ever free trade arrangement. I also had to negotiate the Uruguay round, which halved tariffs and set up the WTO. I made bullish speeches about both, and how they boosted our exports, but neither had the impact I anticipated. Indeed, UK exports to the 14 original members of the single market have stagnated since then, having grown at less than 0.5% per annum—barely 10% over the past 20 years. By contrast, our exports to the 14 largest countries with which we trade just on WTO terms have risen by 88% and now account for 37% of our goods exports worldwide. Our exports to countries with which the EU had negotiated trade deals—the subject of this Bill—have risen considerably faster than our exports to the EU itself, but by less than our exports to countries with which we have no trade deals, and therefore trade on WTO terms.

I have sympathy with noble Lords who call for a greater role for Parliament during trade negotiations. I felt uneasy about the lack of accountability to Parliament when negotiating the Uruguay round. Accountability can strengthen a negotiator’s hands, not just in dealing with the other side but in galvanising his own. Civil servants work their socks off when they know a Minister will have to defend their actions in Parliament, but if that synergy does not exist—how should I put this to the Minister who was an official when I was a Minister?—officials feel freer to pursue their own agendas. But I reluctantly concluded then, as I do now, that though we should consult and report to Parliament, since nothing is agreed until everything is, so negotiation is inevitably a matter for ministerial prerogative and Parliament can only accept or reject.

I urge noble Lords to support this Bill, which will carry forward the modest benefits that existing trade agreements provide. But let us recognise that what really drives trade is producing goods and services that people want to buy and getting out and selling them.

Committee on Climate Change: Progress Report

Lord Lilley Excerpts

Wednesday 1st July 2020 Lords Chamber

[Lord Callanan]

The noble Baroness makes an important point and, as I said to the noble Lord, Lord Oates, we will be setting out our plans, publishing a heat and building strategy in due course. We will take these important points on board.

[Lord Lilley (Con) [V]]

My Lords, I refer to my interests in the register. Does my noble friend agree that this recession is caused by suppressing supply, not by insufficient demand, so we need to rebuild the supply of goods and services as rapidly as possible across the board? If we limit growth, as the CCC advises, to activities complying with green criteria, we will recover less rapidly than otherwise. If we invest in activities which absorb more resources than they produce—that is, those needing subsidy—we will not increase net supply. Will he treat with a pinch of salt demands by the CCC and others, which use the Covid crisis as an excuse to turn the hose of subsidies in their direction?

[Lord Callanan]

As we recover from Covid-19, we certainly want to deliver a UK economy which is cleaner, stronger, more sustainable and more resilient. Covid-19 has been a powerful reminder of the UK’s vulnerability to systemic risks. Fortunately, job creation and a clean, resilient recovery can be mutually reinforcing, and meeting net zero and our other environmental goals can create employment and economic opportunities.