European Union (Notification of Withdrawal) Bill

Lord Howell of Guildford Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Hope of Craighead]

I entirely understand the point that the noble Lord is making, but the trouble with subsection (4) is that it does not mention the two-year period—we do not know what period we are talking about. That is one of the problems with it. It does not think through to the factual situation that would arise in the situation that is being addressed.

I do not at all underestimate the importance of finding a solution to the point that this subsection seeks to address; I am in sympathy with it. I just say that it is not suitably worded and it should be rethought. It is for that reason that I suggest that we should not try to struggle to put the two things together. We should separate out subsections (1) to (3) and adopt my solution, which I need not repeat, as to how they might be simplified and made more attractive and then think again about subsection (4). We can find a way to address exactly the particular situation that it seeks—of separating out the unilateral termination from the bilateral situation—and then try to find ways of meeting that. I do not need to elaborate, but these are the points that I wish to make in broad sympathy with what Amendment 17 is seeking to achieve.

[Lord Howell of Guildford (Con)]

My Lords—

[Baroness Goldie]

My Lords, I am aware that we have not heard from the Labour Benches at all in respect of this group of amendments and the noble Baroness, Lady Kennedy, has her name attached to one of the amendments.

--- Later in debate ---

I shall not labour the point at this time of night, but I happen to agree with the noble Lord, Lord Kerr, that Article 50 does not mean that there cannot be a change of heart. We could unilaterally withdraw our triggering of Article 50. I imagine that is very unlikely, but if there came a point when we looked at the World Trade Organization’s trading rules and at the full panoply of what they would mean, we could decide that we did not want to go down that route and would rather remain in the European Union. Unlikely as it may seem, that has to be an option that Parliament could decide on. I urge the House to find the right amendment before next Tuesday morning.

[Lord Howell of Guildford]

My Lords, I shall come at the amendments from a slightly different angle. It seems to me, listening to the debate, that those who have tabled them may not fully understand what goes on in the House of Commons, or what the nature of parliamentary sovereignty really is. As we know, and as Bagehot reminded us 150 years ago, it is actually the majority in Parliament at the time—or whoever can muster a majority—and the managers of the party or parties behind that majority, who seek to maintain the majority, get the Government’s business through and carry out the Government’s intentions.

I am totally in favour of maximum parliamentary involvement in this process, and I have been from the start. I am sorry that it had to go to the Supreme Court; I thought the Government made a mistake in not putting it openly and fully to Parliament from the beginning. I am glad the case went as it did and, peering into the next two or three years or however long it takes, I welcome the fact that all along the way Parliament will be heavily and continuously involved—particularly the Commons, but ourselves as well, of course. That is my forecast.

People say that Parliament should not involve itself in negotiation. I hear my noble friends say that, and it sounds very sensible. In practice, the daily newspapers, the media and Parliament will all involve themselves in negotiations. There will be leaks in every direction and constant debates. Motions will be moved in the House of Commons. The Government may deplore that or try to avoid it; the Whips may manoeuvre to try to suppress it but that will not happen. There will be a massive and continuous debate about this matter over the next two years. When we eventually get to the point where there is some kind of resolution—whether it is the divorce papers; the new relationship; a bundle between the two; or a single core of views with a long trail of dozens of different sectoral views and arrangements and complex and numerous regulations—Parliament will be deeply involved. Whoever has the majority in Parliament will be in a position to assert their will over it, to reject or accept it. It needs no statute law whatever in practice and Parliament will not need to authorise, criticise or reject any arrangements for the divorce and new relationships that Her Majesty’s Government seek to put before it. They will have to do that; the Prime Minister has undertaken to do so and it will happen. The arrangements will be extensive and complex and will have numerous bilateral elements.

This is where the puzzle grows greater. If, at that point, the Government cease to have a majority, lose control or there are too many rebels and a majority is formed against the proposals, which are then rejected, arrangements leading to a general election will be triggered. I am not sure how that works with the five-year rule but the rejection would be a vote of no confidence in the Government and would trigger, one way or another, a general election. So the people would have their say and that is what will happen. The supporters of the amendment seem curiously unaware that MPs, including Back-Benchers in all parties—both official and minor opposition ones—are perfectly capable of bringing whatever the Government agree to the Floor of the House of Commons and voting on it. Votes can be engineered on crucial aspects which, if they were central enough, could destroy the Government. They can bring matters to Parliament by well-tried procedural devices at any time during the negotiating period.

The elaborate amendments, which distinguished lawyers around me are discussing, are totally unnecessary and do not fit in with the way in which Parliament has evolved and worked over the last 200 years. We have the doctrines of Bagehot, the realities of parliamentary manoeuvres and Governments being brought down by people switching sides. All this has happened and may well happen again. To put it on the statute book is to create an absurdity. There is no need for any statutes to tell Parliament how to behave.

[Lord Hope of Craighead]

One of the points made by the Supreme Court is that it is legislation that provides the authority for the kind of exercise we are talking about. It is all very well having Motions on the Floor of the House, but legislation is the key. That is why I suggest the Government need legislation for the protection I mentioned at Second Reading. If it is in the Bill, we get legislative authority.

[Lord Howell of Guildford]

My Lords, if Parliament voted to bring down the process—the whole confection the Government had worked on and negotiated over two years—it would not need a law, just a majority. Three or four years ago, Parliament voted against the Government’s wish to mount military action against Syria. No one wrote a statute saying that we must not fire cruise missiles at Bashar al-Assad and no one needs a statute here. A majority may well move against this. It is quite possible that, over the years, the media view may build up that this is unacceptable, as the noble Lord, Lord Kerr, and others have rightly reminded us. Some reversal may happen half way through. The Governments of France, Germany and Italy are all likely to change and turmoil is about to take place in the European continent. The people we are negotiating with may well change completely in the next 18 months. All this could happen and would change the approach totally. At that point, whoever can muster a majority in Parliament and form a Government—until they are overthrown—can and will have their say. That is called the sovereign role of Parliament. That is the reality. We are moving around ideas of statutes, which belong nicely in the world of law but not in the world of reality—of parliamentary procedure, parliamentary history, parliamentary action or parliamentary will when MPs really get going. It is a different world down there and that should be understood by the supporters of these amendments, which are unnecessary.

[Lord Deben (Con)]

My Lords, this is not a debate which will be solved on the basis of this group of amendments. It is quite clear that we have to make an amendment to ensure parliamentary sovereignty. I remind your Lordships that we are only having this debate now because we had to go to court to insist upon having it. I remind your Lordships that it is not a proper way for Parliament to proceed via the courts. This happens in other countries without our history and without, I am afraid, the intrusion of Parliament. That phrase should be remembered. Parliament does not intrude when it makes a decision about the future of this nation.

We need to say to the Government that they cannot make a decision without it being put before Parliament in circumstances where Parliament is empowered to make that decision. It is perfectly happy for my noble friend to say, “Well, Parliament will do that anyway”, and “My goodness, we have been doing it all over the years” and all the rest of it—but we have not made a decision of this kind in these circumstances which can possibly be brought forward as a parallel. We have for the first time invented a system whereby we have asked the people for their decision. They have made a decision, but we do not really have a system by which we can naturally enforce and carry it through.

It is therefore perfectly proper for this House to seek the way that most defends parliamentary sovereignty. We do not work on the basis of “one man, one vote, once”. We try to accept what happened in the referendum. I admit, as this House knows, that I am a fierce opponent of Brexit—but that is not the point of this debate. The point of this debate is to stand up again for parliamentary sovereignty. My noble friends can say what they like about the details of the law, but they have to accept that we had to go to court to have the discussion. Therefore, they must also accept that this House ought to ensure that there is a copper-bottomed statutory protection for what the Prime Minister has promised in all good faith.

We also have to take seriously the issue of what happens if the Government decide that they do not like the solution that they have come to and therefore want to relapse into a WTO arrangement, or whatever it may be. If that happens, we will have to have a procedure by which both Houses of Parliament are able to make the decision. Why do the Government not want to do it? I do not understand this. I would have thought that the Government would have wanted to make sure that everybody accepts that this very difficult decision, based on a 52-48 vote and a good deal of misunderstanding on both sides, needs to have proper parliamentary procedure.

The only people who really oppose it—it is very difficult for me to say this, because I am always against lawyers, but I am much attracted to the proposals which we have just heard—and are really pressing for this not to happen are those newspapers that are determined to press their case, irrespective of what we will think in two years’ time. All I want to say is that I do not want to reverse, or fight, or stop what was in my view an entirely wrong decision. It has been made. But I remind us all that we are a parliamentary democracy and that it is necessary for Parliament to be sure that it has a proper say.

Finally, if we insist on this, we will also strengthen the hand of those who are trying to reach a solution which we can all accept and win the best solution for Britain, and will strengthen the hand of those who get up in this House and argue the case for it. We strengthen the hand of moderate, sensible people against those who appear to think that it does not matter how you do it as long as you do it. In that sense we will be asserting not only parliamentary sovereignty but the right of Parliament to insist that the case is put to Parliament and that Parliament is enabled to answer it.