House of Lords


This is the text of my speech moving Amendment 93 to the EU (Withdrawal) Bill on the last day of Report Stage in the House of Lords. It might not make immediate sense without knowledge of the detail, but I post it for the record.

My Lords, I move this amendment for two principle reasons: first, in order to assist the government in its shaping of its case for the UK’s future relationship with the European Union post-Brexit; secondly, because it is consistent with Amendment 49 which was passed earlier in this Report Stage.

Speakers in these debates have repeatedly suggested that anyone who moves an amendment is a hypocritical Remoaner intent on sabotaging the Bill and trying to prevent Brexit from ever happening. I regret the referendum result, but I accept that the UK is to leave – even on this 73rd anniversary of VE Day. My concern, along with many in your Lordships’ House is to ask the government seriously to consider improvements to the Bill … in order both that the people should be clear about the how as well as the what of Brexit and that the transition to a final arrangement might be as good as we can get it. It is my understanding that this is both the role and the responsibility of this House.

I remain concerned that a deeply divided country is being offered two stark alternatives which, if you will bear with me, I will put in biblical terms. Like the people of Israel in the desert, we too easily romanticise the past and yearn to return to Egypt; or, on the other hand, we promise on the other side of the mountain a land flowing with milk and honey (ignoring the challenges that go with it not actually being our land to do with as we will).

I mean it seriously when I suggest that we should be honest in our discourse on Brexit and acknowledge that we shall be spending some years in the wilderness as we begin to work out the consequences of the decisions we have taken and the implications of the relationships we must now begin to establish. Wilderness time is not necessarily negative time – simply a time of waiting and wishing and hoping (or recriminating), but a time for stripping away the clutter, identifying and owning our values and priorities as a nation, and actively bringing together a people divided by their varying apprehensions of events that have befallen them. That serious need for a concrete unifying strategy has yet to be addressed seriously in either House of this Parliament – slogans and wishful thinking are not enough.

With this in mind, then, I come to the substance of the amendment standing in my name and to which, I am sure, the Prime Minister would give her consent as it rests on commitments already articulated by her.

In her Mansion House speech of 2 March 2018 the Prime Minister confirmed for the first time that the UK will seek to maintain a formal relationship with certain EU agencies after Brexit. She further acknowledged that the terms of the future UK-EU relationship may see the UK Parliament take the step of replicating certain provisions of EU law. She put it like this (and forgive me for quoting at length in order to obtain clarity):

Our default is that UK law may not necessarily be identical to EU law, but it should achieve the same outcomes. In some cases Parliament might choose to pass an identical law – businesses who export to the EU tell us that it is strongly in their interest to have a single set of regulatory standards that mean they can sell into the UK and EU markets.

If the Parliament of the day decided not to achieve the same outcomes as EU law, it would be in the knowledge that there may be consequences for our market access.

And there will need to be an independent mechanism to oversee these arrangements.

We will also want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries: the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency.

We would, of course, accept that this would mean abiding by the rules of those agencies and making an appropriate financial contribution.

She then went on to set out what the mutual benefits of such an approach might be. These include firstly, that such membership (however described) is the only way to ensure that products only need to undergo one series of approvals in one country; secondly, that such membership would enable the UK to contribute its technical expertise in setting and enforcing appropriate rules; and thirdly, that this might then allow UK firms to resolve certain challenges related to the agencies through UK courts rather than the ECJ.

That is enough for now to demonstrate the Prime Minister’s case. She concluded with a further statement about the sovereignty of Parliament and the acknowledged costs of rejecting agency rules for membership of the relevant agency and linked market access rights.

Now, it is important to remember that these decentralised agencies were originally established following a proposal from the European Commission and agreement by both the European Parliament and the Council of the European Union. Which, if I am correct, means that the establishment of over 40 bodies was achieved with the support of the UK.

Surely it makes sense, then, to be consistent and retain access to them.

As the Prime Minister made clear in her speech, there will be consequences of not doing so. For example – and to take just one, the European Maritime Safety Agency (EMSA): Our international reporting and monitoring obligations on maritime safety are currently handled via EMSA and there are shared EU rules on seafarer working conditions, which enables the UK to maintain its status as a ‘quality flag state’ under international law. The complexities involved in replicating this would appear to be immense. Furthermore, establishing a domestic equivalent to the EMSA will inevitably put a huge strain on the civil service, take many years to negotiate, and will be enormously expensive. (Yet another uncosted consequence of Brexit?)

I could equally cite the European Aviation Safety Agency, the European Chemicals Agency, Europol, the European Medicines Agency, and others.

My Lords, is it not probable that any future UK-EU trading relationship might demand replication of certain EU measures – product safety regulations, for example? As other regulations continue to evolve in Brussels in the years to come, is it not probable (if not inevitable) that the UK might have to keep pace, if reciprocal arrangements with the EU27 are to continue? (For example, those covering matrimonial and parental judgments.)

My Lords, this amendment does not in any way place an additional burden on the government, nor does it ask the government to change its stated policy stance. It formalises and reinforces those commitments made by the Prime Minister in her Mansion House speech.

Furthermore, with phase two of the negotiations now well underway, the addition of this Clause would demonstrate Parliament’s wish for the UK to maintain a close relationship with the EU – and, in this sense, it is consistent with the role envisaged for Parliament in amendment 49.

I think it is fair to say that although amendments relating to EU agencies were rejected in the House of Commons, this was possibly because the Government had not at that point announced its policy position. Now that the policy position is clear, sending this amendment back to the Commons would simply give an opportunity for further debate on future UK-EU cooperation.

My Lords, I hope I have given a clear rationale for this amendment and its inclusion on the face of the bill. I hope the Minister in responding will recognise the constructive nature of it and its attempt to give some idea as to what sort of milk and honey might lie over the mountain once we have negotiated the wilderness journey. It does no one any favours to pretend we are where we are not; it does everybody a favour to attend to a detail that at least has the virtue of acknowledging the uncertainties ahead, the size and potential costs of the journey upon which we have now embarked, and gives one element of shape to what to many looks, to quote another biblical line, somewhat “formless and void”.

I commend it for debate and I beg to move.

(I tested the opinion of the House and the amendment was passed by 298 votes to 227. It now goes back to the House of Commons.)

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This is the basic text of my speech in the House of Lords during the Second Reading of the European Union (Withdrawal) Bill:

My Lords, many speakers will attend to the technical and legal details of this Bill, and they will be better equipped than I am to do so. I want to use my time, therefore, to pay attention to a question that lies behind the nature of this Bill and the choices we are required to make in scrutinising and attempting to improve it. This question applies to all sides of the argument, whether we think leaving the European Union is an unmitigated disaster or the best thing since Winston Churchill mobilised the English language and sent it into battle.

The question goes beyond economics and trade deals, haunts constitutional matters, and refuses to be submerged by ideologically-driven assertions that promise what can’t be promised and ridicule arguments that are inconvenient. Brexit has unleashed the normalisation of lies, and rendered too easily acceptable the demonising of people who, with integrity and intelligence, venture to hold a contrary view. We are in danger of securing an economic platform at the expense of a culture of respect and intelligent democratic argument.

The question I allude to is simply this: at the end of this process what sort of Britain – and Europe – do we want to inhabit? I accept that this is almost an existential question – challenge, even – but as we debate the legislative detail, we must not lose sight of the point of it all. Existential questions can’t be determined by statute, but the shape of statute speaks loudly of what we think our society should be for, and for whom. This is why debate about discretionary powers of ministers to make laws with equivalent force to primary legislation is of such importance. When such powers are so wide that this House is asked to leave to the judgement of ministers the meaning of such terms as “appropriate”, it is only right to ask for definition. After all, history is riddled with the unintended consequences of what might be termed “enabling legislation”.

But, let’s be honest. Brexit is technically so demanding and complex that, if I were Prime Minister, I would want the authority to deal flexibly with anomalies and technical weaknesses as quickly and smoothly as possible as the consequences of Brexit become known. I understand the technical element of this; but, this Bill goes beyond legislative technicalities and impacts strongly on constitutional arrangements and the balance of power. Surely, if “taking back control” by Parliament is to mean anything, it must mean refraining from bypassing the essential scrutiny that Parliament is privileged and required to provide. Hard parliamentary scrutiny might be inconvenient, but the long-term consequences of granting ministers unprecedented powers (as set out in this Bill) must be considered as they will shape the deeper culture of our state and change our assumptions about democracy.

I think this suggests that, although any sane person will recognise the government’s need to have significant powers to ensure that process (and legal certainty post-Brexit) is as smooth as possible, there must be limits to the use of such powers – or, as a colleague of mine put it succinctly and colourfully, we must avoid Brexit Britain turning into Tudor Britain.

Clearly, there is a balance to be struck here. I do not believe that this Bill, as currently formulated, achieves that balance; nor does it demonstrate that the genuine fears of constitutional experts and lawyers have been properly heard.

I have two concerns about the culture in which this debate is being conducted in this country – looked on with incredulity by those looking at us from beyond these islands.

First, almost every paper, every debate, every statement about Brexit is clothed in purely economic terms. It is almost as if the economy were everything and economics the only Good. Yet, the economy – one might add the word ‘trade’ – is not an end in itself, but rather a means to an end … which is about human flourishing and the Common Good. The economy – trade – exists for the building of society, but society is more than the economy. It is not enough for us uncritically to assume that a market society (as opposed to a social market) is a given or an ultimate good. Culture is more than money and things.

Secondly, the referendum tore off the veneer of civilised discourse in this country and unleashed – gave permission for, perhaps – an undisguised language of suspicion, denigration, hatred and vilification. To be a Leaver is to be narrow-mindedly stupid; to be a Remainer is to be a traitor. Our media – and not just the ill-disciplined bear pit of social media – have not helped in challenging this appalling rhetoric or the easy acceptance of such destructive language.

Yet, beneath this lurks an uncomfortable charge articulated in a recent Carnegie report on tensions between Russia and the West by the deputy director of the Russian Institute for Political and Military Analysis in Moscow: if Russians would still die for the Motherland, what would we die for? Or, as Martin Luther King suggested: if we don’t know what we would die for, we have no idea what we would live for. Once we have ‘done’ Brexit, then what? What was it for? Who do we think we are?

If this debate on Britain’s future is to have any lasting value, and not just undermine long-term relationships of respect and trust, then attention must be paid to the corruption of this public discourse. Politicians could begin by moderating their language and engaging in intelligent, informed and respectful argument that chooses to eschew personalised or generalised vindictiveness or violence. My Lords, we must not allow our body politic to be defined by Brexit; rather, we will need to transcend the divisions currently being forced by the terms of discussion. Peers have an opportunity to model good ways of disagreeing well that might encourage others that there is an alternative to a political culture that appears sometimes to have been reduced to an unbridled tribalism where the first casualty is too often the dignity of the other.

My Lords, please let us not lose sight of the deeper question that lies behind the technical detail of this Bill.