"My Lords, today will be a bit like a wedding, where brides are encouraged to wear something old and something new for luck. Today we have the return of that old double act, the noble Lord, Lord Callanan, and the noble and learned Lord, Lord Keen, (the Tory lords putting the Withdrawal Agreement Bill through its Lords' committee stages) so no change there, but appropriately perhaps, with brides in mind, we have two maiden speeches. The first is from someone I have known and worked alongside for 30 or even 40 years: the former MP and my noble friend Lord Mann, whose work on tackling anti-Semitism has rightly brought him to this House. The other is from the new noble Lord, Lord Barwell. I have great hopes of him, given how well he responded as Housing Minister to my pleas and those of this House to make client-money protection compulsory for letting agents. He heard the arguments, made a decision and made it happen. If only the current Government were as good."
What does she think of the Bill?
"Before us we have a very poor Bill, and one that is being rushed through Parliament. The rush is perhaps understandable, as 31 Jan is fast approaching, but it is not being just rushed but rammed through. The Government are determined to allow no change whatever, even if deficiencies are identified. This is both stupid, as corrections will have to be made later, and arrogant, with scant regard to our normal, democratic method of law-making."
Not pulling any punches there, then, as someone was quick to point out:
(Lord Forsyth of Drumlean (Con)
"That is a bit uncharitable. How can the noble Baroness say that this is being rushed through when the House of Commons did not take the time allocated to discuss it?"
What he means is that if the Commons didn't use all the time allowed in the Parliamentary timetable to debate the bill, then surely it wasn't rushed through without enough debate. In fact, during the three day process last week in the Commons, the Tory majority meant that no real debate was had: the Tories were able to ride roughshod over any objections or proposed amendments.
Hayter maintains that the "ramming through" is a radical insult to democracy:
(Baroness Hayter of Kentish Town)
"I was saying that it is being rammed through, because no changes will be contemplated. That was the distinction I was trying— obviously unsuccessfully—to make. The issue is that our normal democratic method of law-making is for this Chamber to give serious consideration, and then for any amendments to be seriously debated in the other place ("the other place" is House of Lords speak for the House of Commons) to assess their worth and, where necessary, adapt accordingly.
Stephen Barclay, in the other place, warned and threatened us not to defy the will of the country. That reflects a complete—I hope not deliberate—misunderstanding of our role in a bicameral democracy."
It's deliberate.
She then continues to address the problem with the Bill caused by a lack of respect given to the devolved authorities. She mentions Wales: another Lord discussed the issues with Scotland later in the debate:
"But it is not just Lords whom Ministers want to ignore. We have heard via the Speaker some serious concerns from the Welsh Government, which are not addressed by what the Minister has just said. Their concerns may lead to the likelihood—for the first time ever and risking the devolution settlement that has worked so well—of the Welsh Assembly denying legislative consent to a Bill; and still Ministers will not listen."
The Withdrawal Agreement Bill, she says, and this is the crux of the matter, reduces the power of Parliament to check government ministers. As such it is undemocratic:
"The Bill is also a bit strange. Clause 38 specifically recognises that the Parliament of the UK is sovereign, but the rest of the Bill proceeds to strip powers away from Parliament. It repeals the Benn/Cooper requirements to report to Parliament, disapplies CRaG, abolishes the meaningful vote for the withdrawal and final deals, and deprives Parliament of its say as to whether the implementation period should be extended, despite, as recently as October, Robert Buckland promising the other place that it would
“have its say on the merits of an extension of the implementation period”—[Official Report, Commons, 22/10/19; col. 915]
The Minister might say, “Ah, but that is what Clause 33 of the Bill—agreed by the Commons last week—does”. But the decision for no extension has been taken before we have even left, before we have seen any negotiating mandate either from the EU or from our own Government and before we know how such negotiations are progressing or what obstacles, from Northern Ireland or elsewhere, may stand in the way of a satisfactory agreement."
She's quite clearly unimpressed:
"I have to tell the Minister (Stephen Barclay) that we are not going to try to save the Government from having a red face in the summer by giving them wriggle room now, but the chance of a deal, the implementation legislation and all the infrastructure being in place by December is frankly for the birds. I have, waiting here, my “I told you so” speaking notes, ready for when, in six months’ time, the Minister has to be here saying, “Oops. Can we change what we’ve just agreed?” We will leave that for him to do."
She is also unimpressed by the government's actions in regard to the abrogation of Parliament's function as a check on ministerial power:
"Our worries about the Bill stem from the Government’s own slogan, repeated just now, “Get Brexit done”. The electorate quite rightly judged that to mean “Come out by 31 January”. It did not mean “and do so by government diktat rather than by parliamentary process”, but that is what the Bill allows. There is no say over the implementation of our withdrawal, the objectives for the future relationship or the progress of those talks.
The Government says the Bill will
“ensure Ministerial oversight of the Joint Committee”
that deals with the withdrawal, but it will not ensure parliamentary oversight of what our EU Committee calls a
“uniquely powerful and influential body” (she means the EU here: she's having a pop at the way Brexiteers complain about the EU's power.)
with
“significant responsibilities in relation to the Protocol on Ireland/Northern Ireland” (the Brexiteer position is that the EU should stop interfering in what the UK does with NI: it's purely a UK matter)
and with the power to amend the withdrawal agreement, a power immune from
“clear scrutiny procedures or parliamentary oversight”. "
She's referencing in this last point the Brexiteer position that the EU can't be scrutinised by a British parliament, and that this is an affront to democracy. She is making an analogy with a Brexiteer government refusing to allow its own actions to be scrutinised by that same Parliament. She goes on to say:
"Without UK MEPs being involved in negotiations, there will be no British parliamentarians able to scrutinise the decisions of government, whether over how we come out or, crucially, over the negotiations for our future relationship, because the Bill removes what was there before: our role on the mandate for and progress of negotiations on our trading, diplomatic, cultural, consumer, environmental and security relations with the EU. The Government have stripped out undertakings that Parliament would have an input into and oversight of these talks. Instead we will be left with a few “take note” debates and responses to Ministerial Statements. That is not proper scrutiny, and excludes the devolved authorities altogether."
What she means is that there is now no Parliamentary input into the progress of the negotiations with the EU over the trade agreement, and that includes input by British MEPs. Everything will be done at ministerial level - which means the hard Brexiteer ministers such as Barclay, Baker, Raab and Rees Mogg will have unimpeded decision making power - with no requirement in the new Withdrawal Agreement Act for decisions they make to be debated in the House of Commons. In effect the HoC will only be required to rubber stamp any decisions made. Even if there is Parliamentary debate, the Tory majority means that it will be ineffective.
She continues:
"These EU negotiations are vital to the UK’s security and well-being. Those talks will not be easy or fast but, despite expert advice to the contrary, government Ministers continue to maintain that they can complete them all without even considering a longer negotiating period, or indeed a transition period to introduce whatever new agreement is then signed.
Eleven months is unrealistic for the negotiation, conclusion and ratification of a free trade agreement, a security agreement and all the other agreements envisaged in the political declaration. Our concern is that, without proper scrutiny over the coming months, and without any possibility of an extension to the transition period, the Government might just turn around in the autumn and say, “Sorry guys, no deal is possible”, and Parliament would be powerless to act."
Which scenario would, in fact, be in line with what I believe the government wants. She says:
"Even now, as the Prime Minister formulates his objectives for the negotiations, he is refusing via this Bill to put his mandate to the Commons for approval, fuelling fears that it might include no deal—in other words, coming out on WTO terms—although I have to say that, with the schedules yet to be agreed and the WTO in some disarray, even that would be problematic."
The "WTO being in some disarray" bears investigation: expect a report on it soon. Hayter goes on to say:
"The political declaration of 17 October signed by the Prime Minister sets out the framework for a deal, aiming at a
“comprehensive and balanced Free Trade Agreement”
and tariff-free trade in goods. If this is cast aside as the basis for the negotiation, despite Article 184 of the withdrawal agreement, this would be contrary to the spirit of the Vienna Convention that
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
Good faith seems in rather short supply just now."
She is right. "Good faith" is indeed the issue here. If the UK government does not act in good faith as a negotiating partner, then there is no reason for the EU to do so either, and as it had infinitely more negotiating clout, there can only be one winner here. Newsflash: it won't be the UK. The next part of her speech concerns Clause 26. What this essentially does is to allow, during the Implementation Period, ministers to direct the courts to ignore EU Court of Justice rulings that have been binding on our courts up to now. This means that if, for example, someone brought a discrimination case against an employer, the court could make a ruling in the case that does not abide by EU rules. This clause removes protections for ordinary people.
"Without any prior discussion, the Government have dropped the new ministerial power into the Bill in Clause 26; we will hear about this shortly from the noble Lord, Lord Anderson of Ipswich, and, I imagine, other noble and learned Lords. Clause 26 would enable Ministers to allow lower courts, not simply the Supreme Court, to decide not to be bound by ECJ rulings on the EU law that has now been put onto our statute book, risking legal uncertainty and possible divergence between English and Scottish jurisdiction, within the English and Scottish interpretation of law, within our UK-wide single market."
She then goes on to mention the two biggest casualties of the new Withdrawal Agreement, the removal of the rights of refugee children, and the lack of guarantees on the rights of EU citizens:
"Sadly, in this Bill, we have seen a shameful disregard of the rights of vulnerable refugee children to be reunited with their families here. It is not enough to say, “We still believe in their rights.” Why take this from the Bill? There is insufficient fulfilment of guarantees given to EU residents, about which we will hear more from my noble friend Lord McNicol of West Kilbride, towards the end of this debate. In each case—whether to children, citizens or Parliament—the Government have back-tracked on promises made. This is a Bill of which they are proud, but of which they should be ashamed."
Why is this speech important?
This is one of the best dissections of the changes to the Withdrawal Agreement and the ambitions and motivation of the government that I have seen. It sets out very clearly what we are losing. And what we are losing is democracy.
Whatever the merits or demerits of an unelected house may be - and its demerits are often discussed - one of the main functions of a bicameral parliamentary system is for the Upper House to act as a check on the Lower.
In the case of the US, the way in which the Upper House is elected means that it often serves to reinforce the prejudices of the Lower House. In the case of the UK, the slow turnover in the Lords often means that it is not subject to political fashions. This has worked to the disadvantage of parliamentary democracy when the manners and morals of the Lords are against progressive legislation: when, for example, the Lords delay or amend legislation that improves the lives of ordinary people.
The "political fashion of the day" today, however, is an increasingly authoritarian style of government, with ministerial privilege trumping parliamentary process, oversight and the checks parliament can and should set on ministers' ambitions. This is a dangerous road to travel, and it is to be hoped that the Lords' checking function, its drag on the wheels of runaway authoritarianism, can prevent the slide into an authoritarian government run by ministers and their unelected advisors.
How is Baroness Hayter's speech relevant? What are the implications of what has happened? What does this mean for me?
The speech in itself points out, among other things, that the current government has voted to remove Parliamentary scrutiny of its actions over Brexit. This is indicative of its desire to operate without check.
The implications are that the democracy in which you live is under threat. The new House of Commons has very stupidly voted to neuter itself, ceding power in the discussions over the Withdrawal Agreement to the ministers of the crown. Whether it will regret that is yet to be seen.
The implications are that you as a citizen may have a member of parliament who has voted to remove from themself the power you gave them as your elected representative to check the personal ambitions of ministers of the crown.
In terms of Brexit process, however, the implications of this speech, which effectively summarises the likely issues with negotiations over the coming year, are that a no deal is very possible.
Hayter argues that an arrogant executive led by arrogant ministers will fail to negotiate in good faith with the EU. I believe that this will happen both accidentally, because of the government's own belief in its own superiority, and deliberately, to deliver the desired outcome of making a profit for disaster capitalists from the ensuing chaos.
The result, unless the government U-turns on extending the Implementation Period, would be a no-deal Brexit in December 2020.
Update from the Reuters' wire:
STRASBOURG (Reuters) - The European Union’s Brexit negotiator Michel Barnier warned London on Tuesday not to discriminate against EU citizens seeking permanent residency in Britain, calling on the UK government to set up an independent monitoring authority.
“We must now work towards proper implementation of these rights and we won’t be accepting any half measures or any form of disguised or veiled discrimination,” Barnier told the European Parliament in Strasbourg.
“I will continue to insist on the particular importance of the UK putting in place a strong, independent monitoring authority ... that must be able to act rapidly and fairly when faced with complaints from EU citizens and their families.”
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