European Union (Withdrawal) (No. 5) Bill

Debate between Lord Cormack and Baroness Ludford

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

[Baroness Ludford]

Perhaps if noble Lords listened to the end of a sentence they would understand what the speaker was saying.

I look forward to the response about the wording which the Government have apparently discussed regarding an amendable Motion if there is no deal on Thursday, as well as to the response from the Bill’s sponsor, the noble Lord, Lord Robertson.

[Lord Cormack (Con)]

My Lords, I think we should remember that there is no precedent, no parallel, to the situation in which we have found ourselves in recent weeks. As we said at Second Reading last Thursday night, a group of very courageous Members from both sides of the House, and from minority parties, came together to fill a vacuum. After that, the Prime Minister made her welcome overture to other parties, something that should have been done after the general election when we lost our majority.

That changed the situation. Nevertheless, I believe that those who promoted this Bill were entirely justified in so doing. We have had this welcome development from the Prime Minister, so it is entirely sensible that the amendments moved by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, should be accepted by this House. They give the Prime Minister, in this, the ultimate hour—because that is what we are talking about—the freedom to be able to negotiate on Wednesday. It would be manifestly absurd if she did not have that freedom.

We should accept these amendments. I think they improve the Bill. I very much hope that those in another place accept them in the spirit in which they have been moved, and then, perhaps, we can all move on.

European Union (Withdrawal) Bill

Debate between Lord Cormack and Baroness Ludford

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Cormack]

My Lords, speaking as a former chairman of the Northern Ireland Affairs Committee in another place, I think that we should all thank the noble Baroness, Lady Kennedy of The Shaws, for raising this issue. I hope that we will have a sensitive response from my noble friend the Minister. Knowing his track record, I am fairly confident that we will. But if ever we needed reminding how important it is that we handle these matters with sensitivity, we only have to say the words “Windrush generation” and remember the deeply shaming facts of the last few weeks. In an empty Chamber last night, we had a Statement on that, but although the Chamber was virtually empty, every single Member of your Lordships’ House who spoke said, effectively, the same thing.

We are dealing with the movement of people and, particularly, we are dealing with people who have for many years—in some cases, 30 or 40 years or more—had all the rights and privileges of the British citizen. As we know, there is real concern in the rest of the European Union among those who are sad about what happened with your Lordships’ verdict last year that we should give an unconditional guarantee from the word go. They are now apprehensive and, although I believe that it is entirely unnecessary for them to worry about the Windrush effect, nevertheless they are worried. So I hope that, when responding to this debate, which I trust will be brief, my noble friend will be able to give comfort not only to the noble Baroness, Lady Kennedy of The Shaws, but to Members in all parts of your Lordships’ House, in all parties and on the Cross Benches, who share her concern at these important matters.

[Baroness Ludford]

My Lords, from these Benches, very briefly, I just say that we share the concerns expressed in the amendments of the noble Baroness, Lady Kennedy. There are just two points that I would ask the Minister to respond on. First, what is the meaning of “routine” in the Northern Ireland position paper of last August? There was a pledge that:

“The development of our future immigration system will not impact on the ability to enter the UK from within the CTA free from routine border controls”.


A lot hangs on that adjective; can the Minister please elaborate on what that means and on what border controls will be allowable?

Secondly, the draft withdrawal agreement requires the UK to ensure that the CTA,

“can continue to operate without affecting the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens and their family members”.

How will it be ensured that the free movement rights of EU citizens that Ireland is obliged to secure will be respected post Brexit?

--- Later in debate ---

[Baroness Ludford]

My Lords, we on these Benches support the points made by the noble Lord, Lord Kerr, who is arguing for consistency throughout the Bill that taxation or “tax-like charges” should be imposed only by primary legislation. That is all I need to say at this stage.

[Lord Cormack]

As my name is on the amendment, I merely endorse what my friend the noble Lord, Lord Kerr, and the noble Baroness have said. We want consistency. We are glad that Clause 8 is to be taken out of the Bill, but the point that he made about Schedule 4 is very important indeed. I know we cannot vote on that amendment tonight but I hope that my noble friend Lady Goldie, who I am delighted to see will reply to this debate, will be able to give us an assurance that this matter has been taken on board.

European Union (Withdrawal) Bill

Debate between Lord Cormack and Baroness Ludford

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Baroness Ludford]

My Lords, to go slightly beyond the terms of the amendment, as foreshadowed in the words of the noble Lord, Lord Pannick, the issue of principle appears to extend to giving the Government the power not only to decide whether something is to be published but to decide whether they are satisfied that it is retained direct EU legislation. Following the debate on the amendment in the name of the noble Lord, Lord Patel, about clinical trials regulation, there have been exchanges and meetings.

Apparently, I am wrong about that. I am told that at some point I will get a blow-by-blow explanation. The Minister sighs, but no one has actually explained. There is a contradiction between the drafting in the Bill and the Explanatory Notes. The Minister is looking at me as if I am stupid. I am sorry about that, but we need to know the criteria by which the Government will precisely decide whether an EU measure is retained EU law and, preferably, have a list of those measures. That would be transparent. We need both the criteria and the list. We cannot just leave it to the Government to decide not only whether they publish but whether an instrument is retained EU law. This has massive consequences in the real world, as does the clinical trials regulation. Researchers are leaving the country because they do not know whether we are going to continue to apply EU law. This is not nothing; it is an important matter.

[Lord Cormack (Con)]

My Lords, this is very important and the noble Baroness is entirely justified in getting a little worked up about it. I spent 40 years, almost to the day, in the other place. I never had a ministerial office and I was always deeply suspicious of Ministers exercising arbitrary power and of any measure that extended the opportunity for Ministers to exercise such powers. My noble friend Lord Hailsham intervened in the debate earlier this week to remind me—not that I needed reminding—of the importance of the Back-Bencher. The Government must always be answerable to Parliament. Giving a Minister an extra arbitrary power, be it in ever such a small degree, enables them to evade answerability to the elected House.

We are fortunate to have committees—the Constitution Committee and the committee of which the noble Lords, Lord Lisvane and Lord Tyler, are members—that act as watchdogs on behalf of this House and Parliament. As this Bill leaves our House, which it will do in a month or two, and goes back to the Commons, it must have been tightened up in as many particulars as possible so as to guarantee as much power as possible to the elected House.

European Union (Withdrawal) Bill

Debate between Lord Cormack and Baroness Ludford

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

[Lord Cormack]

My Lords, we are extremely fortunate to have in this House the noble Lord, Lord Hannay, who has such intimate knowledge going back over 30 years and more, and my noble friend Lord Luce—I must call him that as we sat together in the other place—who was such a distinguished Governor of Gibraltar and who still maintains his interest as Chancellor of its new university.

I do not want to be at all critical of the noble and learned Baroness, Lady Butler-Sloss, who made a very generous speech, but we have to be careful about the epistle that we who are reckoned to be friends of Gibraltar all received. It was, effectively, a written sigh of relief that at least the UK Government had stepped up to the mark and said that that they were committing themselves to Gibraltar. That commitment is clearly crucial and it is equally very welcome, but it does not solve the problem about which the noble Lord, Lord Hannay, and my noble friend Lord Luce have spoken so eloquently. As the noble Baroness, Lady Northover, said, it is in effect a Northern Ireland situation in miniature, because this is the other border between UK territory and the European Union. People have talked about 350 years, but it is not 350 years, as it is since the treaty of Utrecht in 1713, just over 300 years ago, that we have had this commitment to and legal possession of Gibraltar, which has been continually—or perhaps I should say intermittently—challenged by successive Governments of Spain.

In his speech a few minutes ago, my noble friend Lord Luce made graphically plain what is at stake for the people of Gibraltar. Obviously, I hope that when he replies my noble friend the Minister will reiterate the agreements referred to in the letter we all received, but I hope he will go further and indicate that the UK Government will not sign up to any final agreement that leaves unprotected the people of Gibraltar: nothing is agreed until everything is agreed—the mantra that is repeated again and again. A country should be judged by how it treats its weakest citizens, and by how it treats those parts of its territory which are wholly dependent upon it. The people of Gibraltar are wholly dependent upon the Government of the United Kingdom. There must be no agreement with our European friends and partners—I hope and pray that there will be an agreement—that puts Gibraltar in a precarious, indeed dangerous, position after the end of the transition period.

We talk fairly glibly about the transition period. Of course it is necessary, and we all welcome the progress that was signalled last week and about which we will hear a little more when the Statement is made to your Lordships’ House later this evening; but we are not there yet, and we are a long way from being there over Northern Ireland and Gibraltar. Let us, of course, support the withdrawal of the amendment tonight. I am very glad that there have been no votes in Committee during the long hours we have been debating this Bill, but we may well have to consider another amendment on Report, unless we are utterly confident that there is no question at any time of a sell-out over Gibraltar.

[Baroness Ludford (LD)]

My Lords, the debate this afternoon has amply demonstrated why in today’s Statement the Prime Minister refers to the particular challenges that Brexit poses for Gibraltar. Staying in the single market would mitigate some of those challenges, particularly the economic ones, but there would still be the risk of political problems from Brexit itself.

There has been much talk from Brexiteers about global Britain and even Empire 2.0, which is pretty gruesome, but the damage to Ireland and Gibraltar—I fully agree with the noble Lord, Lord Cormack, and others who have drawn an analogy there—from Brexit belies the claim that Brexit is not focused on a rather little-England perspective and instead has a broad and internationalist one. It would be a terrible betrayal of Gibraltar as well as Ireland if the Government do not have those territories in the forefront of their mind.

The Government of Gibraltar told the House of Lords European Committee that Brexit presented,

“few opportunities worthy of mention”,

and that losing access to the single market in services would be a “severe blow” to Gibraltar’s economy—reflecting the fact that it has been a fundamental tool in Gibraltar’s economic development. It is therefore no wonder that, as others have said, 96% of Gibraltarians voted remain.

The point has been strongly made that Gibraltar depends on the free movement of workers. I was very interested to hear that the noble Lord, Lord Luce, is chancellor of the University of Gibraltar, because it gave evidence to the EU Select Committee inquiry and said how valuable the free movement of staff and students across the border with Spain is to it. It also said that the social welfare system is significantly dependent on the income tax paid by cross-border workers in Gibraltar—and a related point is that Gibraltarians will potentially lose access to healthcare facilities in Spain. So there are so many areas of damage to Gibraltar and the residents of the Gibraltar.

Tourism is another element in its economy that would be profoundly harmed by any border problems. The European arrest warrant was described by the Government of Gibraltar as,

“a blessed relief because it took the sovereignty dispute out of the equation of extradition”.

As it involves mutual recognition between judges, it does not depend on Government-to-Government agreement.

The Government of Gibraltar are particularly worried about the possibility of no deal and a cliff-edge scenario. I believe that the Brexiteers have been cavalier in envisaging this possibility. I have to reproach the Minister in this respect, because he mentioned it again last week to the committee—as did his colleague in the other place Robin Walker. Reviving the “no deal” prospect is breathtaking in its irresponsibility to a territory such as Gibraltar. The Government of Gibraltar suggested that it could result in their frontier being severely disrupted or even closed, which would be “potentially disastrous”. It might mean the UK Government having to step in to support Gibraltar’s economy, as they did in the Franco era. I wonder whether British voters have been told about such a possibility, given that they know, or at least have been told, that Britain’s economy is set to deteriorate if we leave the single market—the Prime Minister has said that—and their incomes might well be squeezed. So there could be quite interesting political problems for a Government defending subsidies to Gibraltar.

Lastly, as has been pointed out, Brexit means that Gibraltar will depend on the good will of Spain. It will no longer have EU law there. That law has not been perfect and there are still some issues, but Gibraltar has looked, with justice, to the EU to arbitrate and defend it in disputes with Spain. But it will not have that protection if we Brexit, and the onus will be on the UK to take action. So, like other noble Lords, I think this is a very important issue and I look forward to the Minister telling us exactly how the Government are going to look after Gibraltar, in the same way that there is huge feeling in this House about the maintenance of no internal border in Ireland. I think that the Government have a lot of explaining to do.

European Union (Withdrawal) Bill

Debate between Lord Cormack and Baroness Ludford

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

[Baroness Ludford (LD)]

My Lords, the Prime Minister’s speech in Munich 10 days ago, which was cited in the previous debate, was encouraging as far as it went. The Prime Minister spoke of wanting to participate in Europol, the Schengen Information System, the European arrest warrant and the European investigation order, which is a sort of European arrest warrant for evidence. But aspiration is not enough. Cross-border co-operation on law enforcement is premised on an assumption that all member states share similar standards of fundamental rights protection. Mutual recognition is rooted in mutual trust. I am afraid that successive British Governments have not really understood this sufficiently and have been more or less reluctant to sign up to the protective measures alongside the measures on police powers.

It is really strange that the UK has had such an ambivalent relationship with EU justice and home affairs over the past 20 years because it is possible to say, without being arrogant, that our record on the rule of law and the quality of our lawyers, judges and police stand comparison with any other in Europe and should have put us at the centre of EU developments in civil as well as criminal justice. But successive Governments have insisted on opt-outs and optional rather than full-hearted participation. That has not stopped the merits and value of our weight and experience and our personnel in justice and home affairs being recognised. We have the director of Europol—I think he has been there for the best part of 10 years—Rob Wainwright, who is on the brink of retiring. Of course, the European Commissioner for Security, Sir Julian King, is British. Two former presidents of Eurojust are British. That is the body of prosecutors which ensures that cross-border investigations and prosecutions are carried out smoothly. Indeed, the noble and learned Lord, Lord Thomas of Cwmgiedd, was president of the European Network of Councils for the Judiciary—the network of judges—which supports and encourages an independent and qualified judiciary.

You cannot do cross-border co-operation unilaterally. It has to be a reciprocal arrangement based on legal agreements which are enforceable in respecting individual rights as well as the rights of national authorities. There are two foundations of mutual trust within the EU: first, the possibility of recourse to the European Court of Justice to ensure a level playing field in the application of EU law; and, secondly, the rights and principles in the European Charter of Fundamental Rights, the right to protection of personal data being of particular relevance in this context.

On the resolution of legal disagreements, in her Munich speech the Prime Minister proposed two principles: first, respect for the sovereignty of the UK’s legal order; and, secondly, respect for the remit of the European Court of Justice, at least when participating in EU agencies. I think there is a lot of head-scratching about how those two principles are going to be reconciled. I am hopeful that the Minister will be able to explain to me precisely how that is going to work. Can he also flesh out what a security treaty would look like in incorporating what the Prime Minister called a mechanism for,

“independent dispute resolution … in which both sides can have the necessary confidence”?

How will the full exchange of data be secured under the auspices of such a treaty? About three years ago Denmark voted to leave Europol. Since then, it has negotiated very limited access to data in Europol—and it is a full member of the EU, the Schengen area, the European Court of Justice and the Charter of Fundamental Rights. What makes the Government think we will get better access to Europol than Denmark? We might well get observer status but we will have no vote on the work programme or the direction of Europol’s work.

We will discuss the Charter of Fundamental Rights fully later but it is highly relevant to the exchange of data so I must mention it now. The relevance of the Charter of Fundamental Rights is why the trade body of the British tech industry, techUK, has urged the retention of the charter in domestic law. It is interested mainly in the commercial exchange of data for the digital economy but the same applies to the exchange of personal data for the purposes of law enforcement. The tech sector is very well aware of the long-running problems over transatlantic data transfers after the Snowden revelations in 2013, leading to years of political wrangling and litigation, including the ECJ blocking the so-called safe harbour agreement before the privacy shield was agreed—and there had to be changes in US data protection law to achieve that.

Whether or not the UK seeks a formal adequacy decision in the context of our future trade and security relationship, we can be sure that there will be a wide and deep assessment of data protection in this country, not least by the European Parliament, and the possible invalidation by the ECJ of any agreement which fails fully to adhere to EU standards. It seems ill judged for the Government to prejudice that trade and security relationship with the EU by jettisoning the charter. The fact that they insisted on weakening the privacy protection for immigration data in the Data Protection Bill may also turn out to be unwise.

The Prime Minister wanted continued participation in the European arrest warrant and the European investigation order. The extradition agreement with Norway and Iceland took 13 years to negotiate, is still not in force three years after agreement, and does not include surrender of own nationals. How do the Government propose to do better than Norway and Iceland? The 1957 Council of Europe convention would be a step backwards in extradition practice and in any case would require not only the UK but individual European countries to change their legislation. What prospect is there of them doing that?

On the European arrest warrant, the Government will of course be aware that the Irish courts have refused the extradition of a person to the UK and have referred the case to the Luxembourg court because they are afraid that if they return someone to the UK and they are in detention beyond March next year, they will not get the protection of the European Charter of Fundamental Rights. So it is already affecting extradition co-operation. The European investigation order—the other measure the Prime Minister mentioned—has been implemented in UK law, as I have had cause to raise with the Government, by substituting reference to the charter with a reference to the European Convention on Human Rights, which of course is not an EU measure. That seems a rather petty thing to do and, again, does not seem very sensible if it is a flagship measure mentioned by the Prime Minister but it has not been properly implemented in UK law.

To conclude, can the Government tell us, given their limited acceptance of ECJ jurisdiction and their rejection of the charter, exactly what terms—and under what structures, as was just mentioned—they expect to get in a security treaty, and will they submit a draft for our enlightenment before too long? I beg to move.

[Lord Cormack (Con)]

My Lords, I added my name to the noble Baroness’s amendment for two reasons. The second was that I was encouraged by what the Prime Minister said in Munich and I very much hope that we are going to have the closest possible co-operation for all our security. But the first reason that I put my name on the amendment was that I had the honour, until the unfortunate general election of last year, of serving on the EU Home Affairs Sub-Committee of this House. After the general election I was summarily dismissed because I had not voted with the Government during our debates on the triggering Bill last spring. But there we are: it did not shut me up and certainly will not shut me up tonight because we took evidence from Rob Wainwright, the head of Interpol.

On that committee, I used to sit next to Lord Condon. I am very sorry that he has retired from your Lordships’ House because he made an extremely important contribution, based on vast knowledge. I was impressed by his pride in what Rob Wainwright had achieved as a Brit leading that extremely important organisation. I was impressed, too, by the searching questions that Lord Condon asked of not only Rob Wainwright but a number of other expert witnesses who came before us. The conclusion that one had to come to after those various evidence sessions was that the measure of success of our negotiations would be determined by how close we had come to replicating what already existed.

There is no point in rehearsing all my misgivings about where we are, because we are where we are. But I hope that my noble friend on the Front Bench can reassure the Committee that the Prime Minister, following her Munich speech, really is committed to coming to close arrangements with our European friends and neighbours to ensure that the measure of security which we enjoy—and which the people of this country enjoy—will not be damaged by an imperfect relationship with Interpol. I would like to see a proper membership of Interpol and, frankly, I am not persuaded that it could not happen. I hope it will because what matters more than anything else to the people of our country, almost a year away from the terrorist outrage which hit us here in Westminster last March, is that they feel secure. That feeling of security is encouraged if they know that there is the closest possible co-operation and exchange of information with our European friends and neighbours. One other thing that came out during our evidence sessions was the very real importance of the European arrest warrant. I hope that in building upon what the Prime Minister said in Munich, we can ensure that there is again a similar arrangement after we leave the European Union.

Those were the reasons why put I my name to the amendment and I am glad to support it. I do not want to sound offensive in any way because I have a high regard for my noble friend, who has a very difficult job to do, but I hope we will have a reply to this debate of real substance, in view of what the Prime Minister said in Munich a couple of weeks ago.