Outcome of the European Union Referendum

Lord Lisvane Excerpts

Wednesday 6th July 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, we have heard some outstanding speeches in this debate. The contributions of the Leader of the Opposition, of the noble and learned Lord, Lord Wallace of Tankerness, and of the most reverend Primate the Archbishop of Canterbury were compelling and memorable. Together, they expressed a sense of shock, of lost opportunity and of the need to heal wounds. But the noble Baroness, Lady Smith of Basildon, was rightly remorseless in listing the questions which need answering before we can move forward.

I want to concentrate on one of those questions: Article 50 and the role of Parliament. There are those who say that we should trigger Article 50 immediately, but anyone who has ever negotiated with anybody on anything knows that if you do so against the clock and you are, as we shall be, supplicants, then when you run out of time you have to accept what the other side is prepared to give you. So the argument for invoking Article 50 without substantive preliminary negotiations and a route map is dangerous.

How might Parliament be involved in the process of triggering Article 50? Paragraph 1 of the article says:

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.

For 27 of the 28 member states, determining those requirements is made much easier by the fact that they have formal written constitutions. For us—and I have absolutely no wish to see a British written constitution—it is more a matter of constitutional “expectations” than of constitutional “requirements”.

A number of people have put forward the argument that because an Article 50 notification commits the United Kingdom to withdraw from the EU, it must be inconsistent with the European Communities Act 1972. This argument goes on to state that if the inevitable result of giving notice under paragraph 2 of Article 50 is that, two years after that notice, our membership of the EU ceases, that frustrates the will of Parliament in having passed the 1972 Act. The conclusion is therefore that if Parliament is given no opportunity to reconsider the matter and make new legislative provision, the giving of notice is simply unlawful.

This is an ingenious argument, but it is also wrong, being based on a misstatement of what the 1972 Act actually does. As Section 2(1) of the Act makes clear, it is a means of giving domestic legal effect to our treaty obligations. Those obligations were entered into separately, exercising prerogative powers without the approval of Parliament. The Act did not make us a member state of the then EEC.

After 44 years in this building, I am no enthusiast for the exercise of prerogative powers without parliamentary approval, but the fact remains that, like it or not, under our present arrangements notifications under international treaties are prerogative acts. The Constitutional Reform and Governance Act 2010 provided a statutory role for Parliament, although a circumscribed one, in the ratification of treaties. It was a statutory version of the previous convention, the Ponsonby rule. But an Article 50 notice is not itself a treaty and the giving of notice in no sense requires ratification in the terms of Section 20 of the CRAG 2010, although the eventual withdrawal agreement would be subject to the procedure—but that would obviously be far too late in the day for any effective parliamentary involvement.

So the conclusion must be that giving notice under Article 50 TEU is a prerogative act; it has consequences for the operation of the European Communities Act 1972 but it does not repeal or amend it. In the jargon, the provisions of Section 2(1) of the 1972 Act are “ambulatory”; they depend on there being Union obligations to be given domestic effect. If there are no such obligations, the Act has nothing to bite on. Incidentally, I join my noble friend Lord Kerr of Kinlochard in being pretty confident that an Article 50 notification can be withdrawn even though the treaty is silent on the matter. The evidence given to the European Union Committee was convincing on that point, and it may be relevant if the exit package proves to be wholly inadequate and unacceptable to the country at large. I also heed the warning of my noble and learned friend Lord Brown of Eaton-under-Heywood that if there were contention, this matter would fall to be decided by the ECJ.

There are those who suggest that the whole process could be cut short by simply repealing the 1972 Act and not worrying about Article 50. That would just be mad. Simple repeal of the primary Act would mean that the huge body of domestic law made under its Section 2(2) would cease to have effect. Section 16 of the Interpretation Act makes it clear that rights acquired up to that point would be preserved but, without savings to keep the secondary legislation effectively in place, the overall result would be chaotic. More to the point, it would not take us out of the Union; it would simply stop the mechanism by which Union obligations are given effect. So we would go into withdrawal negotiations in breach of a whole range of obligations, which would make our negotiating position a very poor one.

In my view, the giving of notice under Article 50 is without question a prerogative act. However, it is the related political imperative that brings me into agreement with those on the other side of the argument and especially with the noble and learned Lord, Lord Morris of Aberavon. I think it wholly unrealistic that any Administration could think of invoking Article 50 without the approval of Parliament, and I mean of both Houses. Yes, the Article 50 route would give effect to the will of the people but, crucially, the people were not asked on what terms we should leave the EU, and the prospects of successful negotiation will now become an increasingly important factor. Here I agree with the noble Lord, Lord Butler of Brockwell: at the end of the formal negotiations there will be an exit package. It may be good, it may be acceptable, it may be the least worst or it may be disastrous, but it will surely require further authorisation whether popular, parliamentary or, more probably, both.