Brighton peers criticise Brexit bill in House of Lords debate

Posted On 02 Feb 2018 at 12:55 am

Two peers from Brighton criticised the government’s Brexit bill during a two-day debate in the House of Lords.

Jenny Jones, known as Baroness Jones of Moulsecoomb, and former Brighton and Hove council leader Steve Bassam, known as Lord Bassam of Brighton, spokeon successive days.

Baroness Jones, the only Green peer, said: “I did something very controversial during the EU referendum campaign: I went against my own party’s remain position.

“I campaigned to leave the EU because the EU is a top-down project designed to promote endless industrial development and economic growth.

“It remains my strongly held belief that we can have a greener, fairer, healthier country by leaving the European Union.

“In taking this view, I feel a strong personal responsibility to Greens everywhere and to the country to do what I can to ensure that Brexit is a success for the environment.

“I still want to leave the EU but I absolutely cannot support the bill as it stands.

“The Constitution Committee has described the bill as ‘fundamentally flawed from a constitutional perspective in multiple ways’ but it is fundamentally flawed from an environmental and social perspective too.

“It remains government policy that through Brexit we will strengthen our democracy, protecting and enhancing environmental and social laws in the process.

“In its current form, though, the bill will fail on all those aims and, sadly, the gaps in it will leave the environment as the biggest casualty.

“The bill does not do what it was promised it would do: it does not ensure that existing EU law is retained. In fact, it explicitly excludes certain aspects of EU law without any justification.

“For no clear reason it drops some fundamental principles of EU law, such as the precautionary principle that must currently be applied by courts, businesses and government.

“Additionally, the bill retains EU laws without their accompanying preambles. This misses out, for example, the ‘polluter pays’ principle from the environmental liability directive and loses the aim of biodiversity conservation from the habitats directive.

“These omissions lose crucial interpretive aids for the courts in some obscure attempt to squash a square peg into a round hole as we bring the body of EU law into the literal system of English law.

“I struggle to understand how the courts will continue to apply retained EU law when these essential principles are gutted from our jurisprudence.

“Indeed, senior judges have expressed the need for Parliament to make this as clear as possible.

“We are setting ourselves up for decades of legal chaos while we needlessly undermine our environmental and social protections.

“I am warmed by the many promises this government are making about ambitions for the environment and their pledges to bring forward legislation.

“However, I note a very deliberate change of tack in their approach to the bill. No longer is it seeking to retain all EU law and bring everything into order to prepare for Brexit.

“The government are now saying that a whole raft of other bills are the correct place for retaining some of these really important parts of EU law.

“It is the promise of jam tomorrow which we more or less do not accept.

“I suspect that this repositioning is a government tactic to avoid some very important amendments being made to the bill while passing through scrutiny.

“There may well be better legislation in future in which we can establish the lasting legal frameworks that will define our post-Brexit lives but we only have the bill before us now and we cannot allow deficiencies in it to prevail in the hope that some future bill may address them.

“We must amend and repair this bill so that it is fit for purpose and I hope there is sufficient will in this house for that to happen.

“I shall speak on two issues in particular. First, on animal sentience, there has been a surprising amount of public support lately for this rather technical-sounding principle.

“We are a nation of animal lovers who understand in our hearts that living creatures deserve respect and care and that humans should avoid their suffering as far as possible.

“The government’s attempt to head off amendments to the bill has been to publish a draft bill recognising animal sentience but that achieves the opposite of their intention by setting out a perfect example of how the government could well fail to replace EU law with equivalent provisions.

“A legal opinion commissioned by Friends of the Earth has compared the provisions of the draft bill with article 13 of the Treaty on the Functioning of the European Union.

“Article 13 requires the state and its bodies to ‘pay full regard’ to animal welfare. It has a very narrowly limited set of permitted exemptions.

“Contrast this with the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, which requires ministers only to pay ‘regard’ to animal welfare, balanced against other matters of public interest.

“This makes the relevant considerations a matter of fact to be assessed by the decision-maker, subject only to the relevant legal test of irrationality.

“So animal sentience and animal welfare is an ongoing example of the withdrawal bill failing to bring EU law across into domestic law and of the government’s proposed alternative legislation failing to give the same level of protection as exists in EU law.

“Far from setting a gold standard, it is a significant undermining of the current position. Accordingly, this makes me quite sceptical that the government will be able to protect and improve on EU law in other bills.

“It seems incumbent on us to fix whatever deficiencies exist in the bill now so that we can be sure, when it goes to the other place, that they will have a good bill to comment on.

“The second issue is the Henry VIII powers contained in the bill. The reports of the Constitution Committee have done a fantastic job of setting out these issues.

“I am sure that many learned members of this house will cover the detail of the constitutional implications so I will focus on the principles that are at stake.

“The government are giving themselves some very broad powers which could even be used to grant themselves more powers.

“I know that many civil liberties organisations are very concerned about human rights. Stonewall, for example, would like a clear commitment that LGBT people’s hard-won rights will be protected.

“I want to be constructive. I remain supportive of leaving the EU but the bill before us is the wrong way of going about it.

“I am confident that the collective wisdom in your Lordships’ house will bring this bill into a much more palatable form but, as it stands, I cannot possibly vote for it.”

Lord Bassam said: “I start with a confession – actually, two. It is a while since I have done this. Back in 1975, I made a decision to vote against Britain being part of the EEC (European Economic Community). That decision was as wrong then as I believe Brexit is wrong now.

“I never thought I would end up taking part in a national debate 42 years later seeking to preserve much of what we have gained in the intervening years.

“We must respect the outcome of the referendum and our primary task now has to be to limit damage.

“Labour’s historic role will be to protect jobs and the economy. Others in this debate are better qualified than I am to talk about the long-term impact of leaving the EU on the UK economy but already there are worrying signs.

“We should have no truck with the ready complacency of David Cameron, the PM who I believe led us to the worst post-war policy decision – barring perhaps the Suez invasion.

“In the face of this, what should we – the unelected house – do with the bill? It would be wrong to reject or emasculate it. Leaving the EU will happen.

“The questions are: what are the terms of our leaving and how can we mitigate the damage?

“We need to be on-side with the national interest and we in this house should be mindful of our role in protecting the constitution.

“In truth, the bill is an alarming incoherent concoction in need of improvement before we send it back, amended, to the other place. We should be unafraid of that task.

“The Constitution Committee has done a great service in providing noble Lords with a route map; it is one that we should follow.

“Much of the critique is legal and technical, not about policy, but that does not mean it is unimportant.

“Getting the law and its application right will have a direct impact on how post-Brexit policy is determined. For that reason, what your Lordships’ house does with the bill is of central importance to the future prosperity of our nation.

“For example, if we let the government off the hook on EU-derived rights and the European Charter of Fundamental Rights, protections on consumer law, environmental protection and workplace rights, we will have failed in our duty as a revising chamber.

“If we cannot secure a properly balanced means of transposing EU law without recourse to arbitrary Henry VIII powers, we will have weakened the protection of the public and failed in our duty.

“If we cannot secure a transitional period based on current terms within the single market and customs union, we will harm our economy and the national interest.

“Before we get attacked by the likes of Jacob Rees-Mogg or the Brexit Minister, Mr Baker, I ask them to think first and reflect on the proper role of the second chamber.

“It is our patriotic duty to send large parts of the bill back for reconsideration. Labour has rightly set out its red lines and they are likely to be shared across the house.

“They will include: a meaningful vote at the end of negotiations, ensuring a role for Parliament in the event of no deal, a time-limited transition period on current terms, enhanced protection for EU-derived rights and protections, limiting the scope of Henry VIII powers and the removal of the government’s exit-day clause to give our negotiators flexibility.

“There will be other amendments on other issues. A mechanism for consideration of SIs (statutory instruments) recommends itself and comes from the Constitution Committee’s report.

“In that regard, I hope the noble Baroness the Leader of the House goes further than her tentative proposals this morning.

“Securing the balance between the devolved administrations’ powers and responsibilities and the duties for the UK government as a whole will be a major test, as will be ensuring that the EU border with Northern Ireland is frictionless while it protects the rest of our economy.

“These are not trifling issues. They are matters our government have not handled well. We should remind ourselves just how close they came to falling at the first hurdle over the border issue. Being in hock to a small party is never a wise course.

“Turning again to the recommendations in the Constitution Committee’s report, my untutored eye concluded that at least 13 are a basis for amendments.

“One in particular commends itself: that which proposes that all retained direct EU law should have the status of domestic primary legislation. This would secure legal continuity and certainty post Brexit.

“I have three final three points. Though not a policy issue in this bill, I and other noble Lords will want a coherent explanation of how frictionless trade can be achieved without membership of the customs union or a single market.

“Without it, our economy will be damaged, as reports from the Brexit department yesterday finally admitted.

“I also hope to probe and push the issue of refugees during the course of this bill. The EU may not have covered itself in glory on this but it has had a strategy and without one I fear for the future and safety of young unaccompanied children.

“In 2016, 30,000 of them arrived in Europe. Without effective access to an asylum system or legal routes of transfer, such as Dubs and Dublin III, they will continue to be alone and unprotected.

“We need a humanitarian structure that protects these most vulnerable citizens. The government should set out exactly how, in a post-Brexit world, this will work.

“To date, they have singularly failed to do so, to their shame, and our reputation as a compassionate nation has been damaged.

“I am no fan of referendums. In my view you should use them sparingly. I take the view that if you do not know the answer to the question, you do not ask the question. That was Cameron’s historic blunder.

“The motion moved by my noble friend Lord Adonis invites us to support one on the final deal.

“Like our front bench, I am not minded to support the motion, and I suspect others will similarly resist the temptation but, like others, I think it unwise to rule one out.

“The bill, as many have observed, is mostly about process, not policy, and thus something of a Brexit sideshow, but it is important.

“The Constitution Committee says that it is fundamentally flawed in multiple ways. It can be improved and become a vehicle to restate common values which the EU at its best has achieved.

“This is how I believe we as a house should approach the bill.

“In the absence of a government with a strategy even for their own legislation, it is up to Parliament to provide clarity and a sense of purpose and to bring some cohesion to what is before it. That is our historic task.”