Dianne Hayter, House of Lords, 31st January 2018
My Lords, this has been the most extraordinary debate, has it not? We have heard from former judges, Permanent Secretaries, EU Commissioners, MEPs, Cabinet and Brexit Ministers, and former Speakers, Leaders and Chief Whips of your Lordships’ House.
We have heard from former ambassadors, negotiators, Attorneys-General, high commissioners and governors, party leaders, Chiefs of Defence, trade unionists, farmers, a police commissioner, a Clerk of the Commons and a Lord Chancellor—to say nothing of current lawyers, Bishops, academics and medics. It is a reminder to our detractors that what this House brings to our democracy is not final decision-making but the wisdom of years of experience and public service devoted to the future of our nation and the interests of citizens. Decry their expertise, and the Government risk losing both credibility and help.
Hearing virtually all 188 speeches has been a privilege, as well as quite a bit of fun, with the call for help from the noble Baroness, Lady Northover, from “Hope, Judge and Pannick”; the discomfort of the noble Earl, Lord Sandwich, at his father’s posthumous victory over him in the referendum outcome; the salivation of the noble Lord, Lord O’Donnell, at the thought of raising tax by secondary instruments; and the invitation of the noble Lord, Lord Lisvane, invitation to three imaginary aunts to see “Reservoir Dogs” or “The Texas Chainsaw Massacre”, conjuring up images of the nights of relaxation spent by the noble Lord, Lord Callanan, when released from the Chamber.
But there was also some solemnity. Few will forget the words of the aunt of the noble Lord, Lord Krebs, his only family member to have survived the war in Nazi Germany, who said that it was mad, “to begin to take apart the structure that we put in place to prevent this happening again”.
That was a poignant reminder of what the EU is all about, as my noble friend Lord Radice recalled from his 1955 bike trip across Europe. Perhaps that is why Clause 1 is like a dagger to the soul of the noble Lord, Lord Butler.
Meanwhile, the right reverend Prelate the Bishop of Leeds invoked Martin Luther King with: “If we do not know what we … die for, we have no idea what we … live for”, then asked: “Once we have done Brexit, then what? What was it for? Who do we think we are?”
He stressed that the answer should be about human flourishing and a common good. He also lamented the atmosphere around Brexit, where arguments that are inconvenient are ridiculed, and where there has been a, “normalisation of lies and … demonising of people who … venture to hold a contrary view”, with an “undisguised language” of suspicion, denigration and vilification. As he said, our media have not helped. I also challenge our country’s so-called leaders to get a grip on this.
With only the rare exception, these near-200 speeches have all said that we are not questioning that we will leave the EU and that, to do so, we must have everything ready in time. But the Bill is not yet—in the words of the noble Lord, Lord Hague—in its “perfect, finished form”, able to bring EU law into our legislation. It fails to give Parliament its rightful say. We need, in the words of the noble Lord, Lord Cormack, an assertion not an abdication of parliamentary democracy. As the Constitution Committee said: “The Bill as drafted is constitutionally unacceptable”.
In seeking to meet the “essential” but “unprecedented” task of converting EU law into domestic law, it risks “fundamentally undermining legal certainty”, causing, “constitutionally problematic uncertainties and ambiguities”.
Furthermore, the Bill, “represents a challenge for the relationship between Parliament and the Executive”, and grants Ministers “overly-broad powers” and “greater latitude than is constitutionally acceptable”. To quote the right reverend Prelate Bishop of Leeds— I am sorry, he is popular today—again “if ‘taking back control’ by Parliament is to mean anything, it must mean refraining from bypassing the essential scrutiny that Parliament is … required to provide. Hard parliamentary scrutiny might be inconvenient … but the … consequences of granting Ministers unprecedented powers … must be considered, as they will … change our assumptions about democracy”.
The Minister would be well advised to heed such words. The noble Lord, Lord Bridges, warned that such powers might become the mother of all Henrys, referring, I gather, to Elizabeth of York.
Much has been said, so I will touch on just five areas. First, despite the Government saying that they would bring over all current rights and protections, the Bill in fact specifically excludes the Charter of Fundamental Rights, as covered by my noble and learned friend Lord Goldsmith. It also fails to guarantee that protections cannot later be weakened by secondary legislation. We will work to give the retained law the solidarity of primary legislation. Secondly, it fails to respect the devolution settlements, grabbing back to Westminster non-reserved areas that reside in Cardiff, Edinburgh or Belfast.
Thirdly, still on power grabs, it takes to Ministers, rather than Parliament, swathes of decisions relating to the returning law, while creating legal uncertainty. Fourthly, there remain big questions as to whether the future of the Good Friday agreement has been factored into the Government’s thinking. Fifthly, it would be for Ministers alone—not Parliament —to decide on the withdrawal deal, on any transition accord and on the framework for our future relations with the EU. That is not acceptable.
Just as, with Article 50, a court decided that it should be for Parliament, not the Crown prerogative, to take that momentous step, so it must be Parliament—not No. 10—that takes these enormous decisions that will impact across the nation on our future trading, security, and every other relationship with the EU 27. This is also why I cannot support the amendment from my noble friend Lord Adonis.
We need to amend the Bill to give Parliament the say on these complicated, vital issues—Parliament, where Ministers can be challenged, as the noble Lord, Lord Bichard, said, where the implications of the deal can be examined and debated, and where decision-makers are then accountable for their deeds. Perhaps at that stage the elected House of Commons might judge that it needs a people’s mandate, but that is for them, then.
For the moment, our role is to question the Government’s negotiating strategy—assuming they have one—and examine the secret evidence on which it is based, though as the Times says, “voters have the right to see what is being done in their name”.
We therefore welcome the decision of the Commons earlier today to require the Government to hand over their impact assessment to the Exiting the EU Committee. Can the Minister confirm that this House’s EU Committee will receive the document on the same terms? Once more people have read it, perhaps many will side with the Justice Minister, Philip Lee, who says that if the figures are right, there is a “serious question” over whether a Government could legitimately lead a country along a path that the evidence and rational considerations indicate would be damaging. In the words of my noble friend Lord Liddle, the thrust of our argument is that we must challenge the vacuum left by this hapless Government and that Parliament must be placed centre stage in the coming negotiations and approvals. Just as the European Parliament has a vote on the deal, so must our Parliament, including on any proposal for the Government to walk away without a deal.
Recently, we have heard a new word—BINO, or Brexit in name only—which the lifelong Brexiteers so fear. I do not know about that. I do not know how long the transition should be or on what terms, or exactly what arrangement would best protect our jobs, health and social services, children’s and citizens’ rights and the future of our grandchildren—and yes, I have a six day-old grandson. So, for Ilyas’s future, this is important to me. Although I do not know the answers to all that, I know that those judgments must not be made simply by a Prime Minister to protect herself from dissidents in her own party, but by Parliament in the interests of the country.
So, as the Minister rises to respond, I ask him: to guarantee that these wider, national interests will guide the hands of negotiators; to listen to the calls from across this House to amend the Bill to restore powers to Westminster, not No. 10, and provide legal certainty for the courts; to ensure that the Government will preserve both the Good Friday agreement and the devolution settlements; to work with noble Lords in Committee to safeguard the consumer, environmental and employment rights from any change without primary legislation; perhaps to respond to the suggestion from the noble Lord, Lord Warner, to pause the Bill while the Government make the necessary amendments; and, above all, to defend the right—no, the duty—of this House to advise him and the Commons on the detail of the Bill. That is not much to ask.
Baroness Dianne Hayter is Shadow Brexit Minister in the House of Lords. She tweets @HayteratLords