Brexit

Lord Marks of Henley-on-Thames Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we have repeatedly heard this week the Conservative conference slogan: “Get Brexit Done”, followed by, “then we can get on with our domestic priorities”. That is an entirely false prospectus. Deal or no deal, if we leave the EU, our leaving on 31 October or on any other date is only the first stage in the process. No serious commentator doubts that, if we leave, we will be preoccupied by our future relations with the EU for at least a decade.

What is more, the Government’s approach to our domestic priorities involves spending commitments as unbelievable as the £350 million a week on the leave bus. Such commitments depend on continuing economic success, when all economists agree that leaving the EU on any terms, let alone with no deal, would carry major economic cost. Notwithstanding that, Mr Johnson today advanced a tax-cutting agenda. Despite all those contradictions, the Government assert that “Get Brexit Done” is the people’s demand, but that assertion, in its unqualified terms, is unsupported by any evidence.

Certainly, the electorate is sick of the hostility, the political paralysis, the corrosion of our public life and the failure of the Government to do anything but Brexit, but “Get Brexit Done” will not address that. No, the real majority is for the blunt proposition: “Make it stop!”. The simple truth is that the only way to make it stop is to abandon Brexit altogether, whether by a remain vote in a referendum or by revoking our Article 50 notice.

Yes, there would be national embarrassment, but we would at least be turning back from disaster before we suffered the consequences of leaving. Yes, there would be many disappointed people who voted leave conscientiously, but many of them now recognise the impossibility of leaving without massive disadvantage. Many also recognise how international circumstances have changed: the dangers of an expansionist China, an aggressive Russia, a dangerous Iran, a still explosive Middle East and the mercurial unpredictability of President Trump’s United States.

In addition, our citizens increasingly see combating climate change as a priority and appreciate the EU’s massive contribution to that effort. Young people, more even than in 2016, value their freedom to study and work throughout the EU. More people now see the value of European co-operation in research and innovation, security and policing, law enforcement and co-operation in civil law. Yet, if these new proposals on the Irish border are rejected—as well they may be—we are threatened with an immediate end to all those benefits in a no-deal Brexit, with all its catastrophic consequences, graphically set out in the Yellowhammer documents, because our apparent willingness to accept no deal is said to increase the chance of securing a deal.

We now finally have the Government’s outline proposals to replace the backstop. The conduct of Ireland and the EU to date suggests that they are not so easily cowed and are too sophisticated to be threatened into accepting them against their interest. So was Parliament in passing the Benn Act. The noble and learned Lord, Lord Goldsmith, my noble friend Lord Campbell and others have questioned how the Government may respond.

Yesterday, we celebrated the opening of the legal year with international leaders of the legal profession, who have long admired Britain as a standard-bearer for the rule of law. The rule of law requires more than obedience to our courts, although the Supreme Court has fully demonstrated its quality and independence in striking down the purported Prorogation. As the noble Lord, Lord Anderson, pointed out, the rule of law also requires that the Government conscientiously strive to act according to law. The Benn Act is now the law. The Government must seek to comply with it, not merely because they fail to find a loophole but because our system depends on respect for the rule of law and the sovereignty of Parliament. If the Benn Act’s conditions apply, will the Government conscientiously strive to agree an extension with the EU? Then there can be an election or a binding referendum.

I add that it is in no way undemocratic to allow the people to revisit a generalised decision made in the spring of 2016 and express their view again in the light of the present circumstances and new knowledge at the end of 2019 or the beginning of 2020. Let us have an end to this loose talk of Parliament against the people. At the heart of our democracy is the principle that Parliament represents the people. It is a principle worth defending.

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[Lord Hamilton of Epsom]

No. I have given way to so many people, and we are always being told that we cannot go beyond six minutes.

As everybody will know, the judgment of the Supreme Court alluded to the fact that a number of judgments had been made that had political connotations. This is a step much further: the Supreme Court making a political decision. What has the judgment that we could not prorogue Parliament actually resulted in? We have sat for another eight days while we go over all the old ground. One of the reasons we are where we are now is that Parliament is incapable of reaching any conclusion on what it should actually do about leaving the EU. Have we advanced any further by the fact that we have sat for longer? No, we have not. Have the Government been held to account? Well, on the margin, I suppose. Has it really made any difference to anything? No, it has not—for the simple reason that nothing is actually going to happen until the EU Council meets on 17-18 October. After that, of course, it will be decided whether the proposals we have put forward are acceptable, whether there is a deal to be put to Parliament and so forth. It is after the Queen’s Speech that the Government will have to be held to account, and very little has been achieved by Parliament sitting over all these extra days.

The real problem is that if the Supreme Court says, “We’re going to get into the business of not just interpreting but actually making the law, and we’re going to make political decisions when we do that”, as sure as night follows day, Parliament will say, “If the judges are going to make these political decisions, they must be appointed by Parliament”. That is what will happen if we go on down this road. What will happen? A Select Committee in the House of Commons will interview candidates for the Supreme Court. It will ask them about their political views: which way they voted in the last election, what their views are on social matters such as—

[Lord Marks of Henley-on-Thames]

My Lords—

[Lord Hamilton of Epsom]

No, I am not going to give way any more. I have given way endless times, and it does not seem to be taken into account when I am gone after.

That is what will happen. They will be asked about all these things, and we will move over to an American system whereby when there is a Conservative Administration a lot of conservative judges will be appointed, and when there is a Labour Administration a lot of socialists will be appointed. Is that what we want? No, it certainly is not. We do not admire the American system of having politicised judges and a politicised Supreme Court. It would be a very retrograde step.

I am not taking any notice of my noble friend on the Front Bench. I have had so many interventions that I will have to speak a little longer. We are between a rock and a hard place. If we have a written constitution, we will have to completely review the role of the Commons versus the Lords and the relative powers of the two Chambers. We will have to look at the Commons versus the Executive and the role of the Speaker. We will have to look at the judiciary as well. I was rather hoping that the noble Lord, Lord Judd, would reach the conclusion that we should move from an unwritten constitution to a written one. That is the only way that we will save the institutions of this country. Too many people are trying to push the boundaries of a system that has built up over the years and we are now moving into very dangerous territory indeed.

European Union (Withdrawal) (No. 6) Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I would have preferred not to see the Kinnock amendment in the Bill, whether it was a mistake or not. As the noble Lord, Lord Kerr, pointed out in Committee, it is not open to the European Union to impose conditions on an extension, and this amendment seeks to remove the provision that suggests that there could be conditions. It is certainly not possible for the European Union to impose conditions on the conduct of the British Government during any extension. The words of the Kinnock amendment that this amendment seeks to remove are so woolly as to be meaningless. They refer to the outcome of cross-party talks, which was uncertain; indeed, the talks were abandoned. Along with the Bill’s promoters in the House of Commons and here, I believe that the words of the Kinnock amendment would have no legal effect.

To the noble Lords, Lord Cormack and Lord Brooke of Alverthorpe, I say this: there is nothing whatever in the Bill as it stands to prevent the negotiation of a deal by the Government, if it were negotiated and passed through the House of Commons. The central point is that we have to live with the Kinnock amendment. We need to vote against the amendment in the name of the noble Lord, Lord Forsyth, because we are under the time constraints of Prorogation. Whatever the noble Lord, Lord Hamilton, says about the opportunity that may be there on Monday morning, we cannot foretell what may happen in the Commons on Monday morning if we send back amendments. I therefore urge the House to reject the amendment, which will not affect the central thrust of the Bill in any way.

[Lord Jones of Birmingham (CB)]

My Lords, could I just—

Brexit: People’s Vote

Lord Marks of Henley-on-Thames Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I say to those who take the view of the noble Lord, Lord Lamont, that to permit voters to change their minds in changed circumstances if they wish, or to stick to their guns if not, is an affirmation, not a denial, of democracy. Others have spoken of the lack of clarity of the leave campaign. I debated against Jacob Rees-Mogg, who promised the students of Sussex University—who were largely unimpressed—a global Britain, free trade deals and an end to free movement, while Daniel Hannan MEP courageously told a more reactionary Eastbourne audience that he favoured staying in the single market and continued freedom of movement.

The Government’s position is now clear, unachievable as it may be: leave the customs union, leave the single market, no hard border with the Republic, and one regulatory framework for Northern Ireland and the rest of the UK. Without all that, they say there will be no deal, with all that that means for jobs, travel, borders, food, medicines and so on, yet the Government will deny the people any further say. They say Parliament will have a meaningful vote, defined by the Minister as a vote between deal and no deal. But what if there is no deal? What would the meaningful vote be then—no deal or remain? Could Parliament alone legitimately overturn the 2016 result? It certainly could not insist on a return to the negotiating table; it is too late for that, and it would not achieve anything. Will the Minister give us the answers?

So what are the prospects? Will the EU back down on a backstop? I believe no. We agreed it in December, and for the EU, it is fundamental. Will an extension of the implementation period that is time-limited or terminable at the UK’s will make any difference to the EU? I think not. Will the Government back down on our remaining in the customs union indefinitely? Plainly not. Will the Government back down on a single regime for Northern Ireland and the rest of the UK? No, they would lose the support of the DUP if they did and could not govern.

If there is no deal, would not the Government’s best way out be a referendum between no deal and remain, rather than risk losing a confidence vote? The Fixed-term Parliaments Act is hardly relevant here, because no other Government could be formed within 14 days. Along with the noble Lord, Lord Kerr, I believe that we would get an extension to hold a referendum. It would also be in Labour’s interest, given its divisions, to commit to a people’s vote. Its favoured general election would inevitably and rightly be concerned with multiple issues facing our country, not just Brexit.

If we get a people’s vote, may we talk about the issues with more respect than last time for the rules, the truth and each other—not just about the economy, but about peace and international co-operation, the environment and climate change, cross-border security, education and research and the value of freedom of movement to our young people? Let us be ambitious for our country and for our continent.

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[Lord Callanan]

I am not an expert on procedures in the House of Commons. There are many other distinguished Members here who are, but my understanding is that Motions in the House of Commons are not legally binding. For a further referendum to take place would require legislation to be passed. If the House of Commons passes legislation to that effect, there will of course be a referendum in that circumstance.

[Lord Marks of Henley-on-Thames]

The point I put to the noble Lord and that I wanted an answer to is what the meaningful vote would be in the event of no deal, not in the event that there was a deal. Would Parliament then be asked whether they wanted no deal or remain? To that we have never, ever had an answer.

[Lord Callanan]

I am afraid that the noble Lord again is mistaken. There is a very clear answer to that. Again, the EU withdrawal Act, which we debated extensively in this House, sets out what happens if there is no deal or Parliament rejects the deal the Government have negotiated. In such circumstances, within 21 days of that the Government must put forward a Motion in the House of Commons in neutral terms outlining how we propose to proceed. What happens in such circumstances is very clear. We debated it at length and that is now in the statute that we passed.

Thirdly, and finally, it is a well-established feature of our constitution that the Executive represent the country in international diplomacy, and this constitutional arrangement continues to apply to our withdrawal from the European Union.

There is a very real risk that the continuing campaign to overturn the referendum decision to leave is seriously undermining our negotiating position. If those on the other side believe that we may change our minds—

Brexit: Financial Settlement

Lord Marks of Henley-on-Thames Excerpts

Tuesday 11th September 2018 Lords Chamber

[Lord Callanan]

Yes, we stand by our commitments.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the December agreement on the divorce bill was accepted by the Minister in his first Answer as settling the UK’s existing obligations. Do the Government now accept the Institute for Government’s view that if we reneged, the EU could seek redress, if not in the CJEU, then in the International Court of Justice in The Hague, under Article 70 of the Vienna convention? Does the Minister also agree that such a dispute would not only undermine future co-operation with the EU, as the noble Lord, Lord Balfe, said, but trash the UK’s reputation for honest dealing and would encourage other WTO members to object to our schedules, which any one of the other 163 members could do?

[Lord Callanan]

Of course, we will respect our legal obligations. We are a law-abiding nation; that goes without question. But there are several conflicting legal opinions as to our liabilities. Your Lordships’ House held a committee of inquiry under the chairmanship of the noble Baroness, Lady Falkner, on which I was privileged to serve. Its conclusion was:

“On the basis of the legal opinions we have considered, we conclude that, as a matter of EU law, Article 50 TEU allows the UK to leave the EU without being liable for outstanding financial obligations under the EU budget and related financial instruments”.


There are alternative legal opinions—in fact, I have spent the morning reading most of them—but it is a complicated area of law. Of course, we want none of these scenarios to come to pass; we want to reach an agreement. Indeed, we have reached an agreement, and we will honour our commitments within the context of the withdrawal agreement.

European Union (Withdrawal) Bill

Lord Marks of Henley-on-Thames Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

I remember dealing with this in the body dealing with convention. It is there precisely because of this country’s idea at that stage that we would move to have some exceptions to this, having regard to the case to which the noble and learned Lord referred. This is much less vague than some noble Lords think. I commend their attention to it.

[Lord Marks of Henley-on-Thames (LD)]

On the point made by the noble and learned Lord, Lord Judge, is the noble and learned Lord, Lord Goldsmith, not assisted by the fact that the charter applies only to EU law and that the law on murder is not Union law?

[Lord Goldsmith]

It is always good to have a second argument when you are in front of the noble and learned Lord, Lord Judge.

European Union (Withdrawal) Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Baroness Kennedy of The Shaws (Lab)]

My Lords, many Members of this House will remember that I have raised the issue of matters concerning family law arrangements that cut across the whole of Europe. I chair the EU Justice Sub-Committee of the European Union Select Committee and we published a report for this House, which dealt with issues of maintaining the mutuality that exists across Europe for matters concerning family law, business and commercial disputes, and individual rights.

The concern that we have is that we want it to be clear that, in the negotiation, the Government should be mindful of the ways in which current arrangements have been carefully crafted over many years. A number of directives exist, which I know the Minister is only too aware of: directives on which court will take control of a particular issue if there is a dispute between parties based in different nations; the ways in which family law matters can be dealt with where there is divorce and a breakdown of families, or where there are issues concerning access or maintenance arrangements for children. Those are dealt with by Brussels regulations I, II, IIa and the maintenance regulation, and they are found to be of incredible value in these areas of law. I wanted to raise this again because I would like some assurances from the Minister that these are going to be included in any negotiated settlement with Europe in the future, because the loss of these legal arrangements would be detrimental to the rights of individuals, businesses, people running businesses and others.

Those are the matters raised by me; we want to have monitoring of the ways in which the Government might proceed. It is similar to the position that was raised by the noble Lord, Lord Deben, just now. I am raising this because I want assurances and I hope to receive them from the Minister before deciding what to do. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I start by apologising for arriving a moment after the noble Baroness had started speaking. I did not know what had happened to Amendment 13. I want to speak briefly in full support of the amendment from the noble Baroness, Lady Kennedy of The Shaws. I do not propose to rehearse all the arguments that we made at Committee at some length, but want to make four very brief points.

First, no one suggested in Committee, on behalf of the Government or anyone else, that the family law provisions contained in the European regulations Brussels I, IIa, the maintenance regulation and the arrangements for the enforcement of obligations and co-operation were not a considerable benefit to the citizens of the UK as well of other member states. Secondly, no one suggested that any benefit would flow from our not continuing to have those regulations applied in the United Kingdom. Thirdly, no one suggested that we could achieve reciprocal protections for UK citizens and citizens from other member states of the EU without negotiating for their continued protection. Fourthly and finally, all that could be said and was said by the Minister for the Government was that it was all a matter for the negotiations, but it would be possible to negotiate arrangements whereby we could continue to benefit from the regulations without accepting the role of the Court of Justice of the European Union in overseeing their implementation.

It is on that point that I take issue with the Government, because I ask why the EU 27 should agree to a set of arrangements affecting private law rights—these are disputes between citizens of different member states, by and large—whereby citizens of those other member states have obligations that are enforceable in their courts at the instance of citizens of the United Kingdom, while the United Kingdom could refuse to honour such obligations unless the courts of the United Kingdom approve their enforcement. In other words, a different set of rules could be said to apply to the UK from the rest of the Union.

The Government’s obsession—and I use the word without embarrassment—with the direct effect of CJEU decisions in cases involving treaty rights threatens to scupper the whole system of family law protections that is so important to our citizens, as well as to the citizens of other member states. The noble Lord said that it would be easy to negotiate other agreements for non-binding decisions. That, I suggest, is simply impossible to achieve. I do not see any difficulty with our accepting, in the case of private law rights between citizens, the binding nature of decisions of the Court of Justice of the European Union. That way, we could commit, and commit early, to continuing to have all the rights and benefits for all citizens bound by the regulations for the foreseeable future.

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[Lord Mackay of Clashfern]

I think the noble Baroness has demonstrated the truth of what I am saying: namely, that she is concerned with the rights afforded by EU law in this country. The fact that those rights will continue to be enforced in this country is what the Bill is about. Therefore, I do not see any possibility of this amendment having any effect. The noble Baroness has just mentioned its operation in Italy, if the husband is there. That depends not on the domestic law of this country but on the law of Italy, and that is not part of what we can do in this Bill.

[Lord Marks of Henley-on-Thames]

I am terribly sorry to interrupt the noble and learned Lord when he has already been interrupted, but the point is that these provisions are all about reciprocity. They are about the mutuality of enforcement in other member states and in the United Kingdom. Subsection (2) of the proposed new clause seeks to address the problem with reciprocity. It says:

“The report provided for under subsection (1) must include … the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of family law”.


The point of that reciprocity is to ensure that United Kingdom citizens can enforce rights in other members states under the regulation in the same way as member state citizens—or former member state citizens as they would be—can in the United Kingdom.

[Lord Mackay of Clashfern]

I take what the noble Lord is saying, but such a report would not be dealing with subsection (1). That is my point. Subsection (1) is the operative subsection and it deals with domestic law, and reciprocity is not a matter that can be dealt with by domestic law. The only thing we can do, as I said on the last occasion on which we discussed this, is make sure that our arrangements are suitable for reciprocity and, if the reciprocity comes, that we have the right arrangements to deal with it. That is our domestic side of reciprocity. The rest of the reciprocity belongs to the rest of Europe, and I hope it will see the benefit of this as much as us. However, as far as we are concerned, we are bringing the whole of EU law that refers to family matters into our law by virtue of this Bill, and a report about that would be otiose.

European Union (Withdrawal) Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

I am sorry to interrupt, but if the withdrawal agreement is a mixed agreement then there do have to be votes in national parliaments and, indeed, in regional parliaments. Is the Minister saying that I am wrong about that?

European Union (Withdrawal) Bill

Lord Marks of Henley-on-Thames Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Cormack]

My Lords, I support what the noble Lord, Lord Carlile, has just said and ever so slightly disagree with my noble friend Lord Hailsham. Whatever the nature of the offence, it is wrong that it should be created in this way. I agree with the noble Lord, Lord Carlile, that custodial sentences are highly unlikely, but that is not the point. To create any sort of offence in this way is fundamentally wrong and we should not have anything to do with it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I agree with what the noble Lord, Lord Cormack, has just said. As the noble and learned Lord, Lord Judge, the noble Viscount, Lord Hailsham, and my noble friend Lord McNally explained, the Bill as drafted would permit Ministers, when they consider it “appropriate”—a point made by the noble Viscount and a word discussed at length last Wednesday—to create by regulations new criminal offences carrying up to two years’ imprisonment for wide and diffuse purposes. As discussed last week, regulations could also be used to make any provision that could be made by Act of Parliament. The Henry VIII powers are as all-embracing as could be imagined. This is all the more shocking in the context of the creation of new criminal offences. These may concern individual liberty, certainly; reputation, always; and the conduct of business, as the noble Lord, Lord Carlile, has pointed out.

The report of the Delegated Powers and Regulatory Reform Committee—on which I sat for a number of years—described the powers as “wider than we have ever seen”. It described Clause 7 as notable for its width, novelty and uncertainty, and the same can be said of all three of the clauses in question. The principle is simple: it is in general not acceptable for the Government to have the power to create new criminal offences by regulation without an Act of Parliament. That principle was treated as cardinal when I was on the Delegated Powers Committee.

In 2014 the committee produced a document headed Guidance for Departments, directed principally at memorandums for the departments. However, on the question of criminal offences it was considered so out of order that new criminal offences would be created by regulation that the guidance did not even address that possibility. The committee said:

“Where a Bill creates a criminal offence with provision for the penalty to be set by delegated legislation”—


that is, the Bill creates the offence—

“the committee would expect, save in exceptional circumstances, a maximum penalty on conviction to be included on the face of the bill. Therefore, where this is not the case, the memorandum should explain why not, and at the very least the Committee would expect the instrument to be subject to affirmative procedure. Similarly, where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

However, this Bill potentially permits the creation of a new range of criminal offences. Both the Bill and the Explanatory Notes are silent about everything to do with such offences as might be created except for the broad statement of their purpose in the three clauses, in the most general terms, and with no indication of what offences are envisaged, except that the maximum penalty must not exceed two years imprisonment—which, as the noble Viscount, Lord Hailsham, pointed out, is a not insubstantial period.

The basic principle was enshrined in Article 39 of Magna Carta: that no one should be imprisoned or stripped of his rights or possessions or deprived of his standing in any way except by the lawful judgment of his equals or by the law of the land. These are constitutional principles as old as this Parliament, and we should be very careful in dealing with the issue of allowing the right of Parliament to insist on a say over criminal offences being created by the diktat of Ministers.

[Lord Thomas of Gresford (LD)]

My Lords, in this context, I draw attention to the paragraphs in the Delegated Powers and Regulatory Reform Committee report which deal with tertiary legislation because it is important that this aspect should be understood. The Bill confers powers on Ministers to make law by regulations, and the secondary legislation can do anything that Parliament can do. This would allow people, bodies or Ministers to make further subordinate legislation—tertiary legislation—without any parliamentary procedure or any requirement for it to be made by statutory instrument. Where tertiary legislation is not made by statutory instrument it evades the publication and laying requirements of the Statutory Instruments Act 1946 but it is still the law.

Nothing in the Bill limits the power of creating tertiary legislation. It can be used for any purpose—for example, to create new bodies with wide powers, which could introduce criminal offences in many of the areas currently governed by EU law, including aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They may only provide the skeleton provisions in relation to a particular activity, leaving the detailed regime to be set out in tertiary legislation made not by Parliament or Ministers but by one of the new bodies so created.