Northern Ireland (Executive Formation) Bill

Debate between Lord Adonis and Lord Goldsmith

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Adonis]

I think my noble friend is referring to 1974. I have looked that up. Parliament met at the end of October 1974, having had the election. There is no precedent for Parliament not meeting in October. There is no precedent in Britain for a controversial use—a use that would not be generally accepted by most parliamentarians—of the prerogative of Prorogation since 1831, when William IV prorogued Parliament at the request of Earl Grey to prevent the frustration of a Dissolution, which was so radically different a case from the one we have today that it is not comparable. The only case that I can see in any of the Dominions that corresponds to the situation we face now is from Canada in 2008. The then Canadian Prime Minister advised the Governor General to prorogue Parliament. All I can say, having looked at the circumstances of that case, is that it was bitterly controversial. The Governor General thought long and hard about whether to accede to the advice of the Prime Minister. It was immediately after a general election, when the circumstances were very different. If Boris Johnson is thinking of dragging Her Majesty into a controversy as deep as would be involved in banning Parliament from meeting in October, he will be doing a massive disservice not only to Parliament but to all our institutions of state. I hope he does not go there.

[Lord Goldsmith (Lab)]

My Lords, I think it is fair to say that this has been a robust debate. Obviously, I support the amendment to which my name has been added and oppose Amendment 7A, proposed by the noble Lords, Lord True and Lord Forsyth, which would wreck that amendment.

I will deal with the arguments that have been raised against this amendment. I shall start with the first of them, which is that it is inappropriate in the context of Northern Ireland. I would have thought that the question of what parliamentary oversight and intervention are possible in relation to Northern Ireland is of the greatest importance. The Bill as it stands proposes, rightly, that reports will be published about the progress towards the formation of an Executive in Northern Ireland. Should Parliament not be there to receive those reports, to debate them, to consider them and to make recommendations on them, that would be the consequence of stopping Parliament sitting during that period.

I note that David Sterling, the head of the Northern Ireland Civil Service, said only the other day:

“We have lacked that ministerial voice in Whitehall that has championed the cause of Northern Ireland”.


So to find that Parliament was not sitting just at the time when the issues with which this Bill is concerned were coming up would be a great tragedy. So it is very much an issue which Northern Ireland should be concerned about.

But of course it is broader than that. The debate has made that very clear. The argument that the noble Lord, Lord Anderson of Ipswich, started with must be right. If what we are talking about is the possibility that Parliament will be banned from meeting and expressing views during the critical period when we are leaving the European Union—I accept of course that the Bill says what the date is, but it is open to Parliament to do something else if it chooses to do so—to say that Parliament should not be there at that stage is a constitutional impropriety and would be a great assault on our current constitution.

It is said, and it is argued by the opponents of this amendment, that it is there to frustrate the will of the people in relation to leaving. Well, it cannot do that. Nobody suggests that it can do that. As one of those who signed the amendment, I do not suggest that it does that. What it would do is make sure that Parliament was there at the time that decisions were being made so that we did not have a situation where at the time of one of the greatest decisions this country has made in recent times there was simply an Executive and no Parliament to oversee or control them. That would be the greatest assault on the constitutional traditions of which I am so proud, as are so many Members of this House.

As the noble Lord, Lord Forsyth, knows, I admire his debating skills and his opinions, but he has not responded to the question put by my noble friend. I hope that when the Minister gets to his feet he may be able to give a clear answer on whether in fact this can all be brought to an end by a statement that there is no risk and that there will be no Prorogation. Unfortunately I expect that that is outside his power—and I see he is nodding. I suspected that was the case, and we all know why that is so. That would be an end to this debate. As it is, with that uncertainty as to whether Parliament will be allowed to sit during that critical period, we have to do something to allow an opinion to be expressed about that. The gambit would not be doing this; the gambit would be making sure that Parliament was not there at a time of crucial national emergency. That would be the constitutional gambit.

I congratulate the noble Lord, Lord True, on a speech that succeeded in insulting everybody in this House: the Liberal Democrats for not being the party that supported leaving, obviously my Front Bench and me—I fully expected that—his former leader, Sir John Major, for what he said, and others as well, including his current leader, as I have just been reminded. But be that as it may; he is entitled to do that and to take those views. But what he said in attacking the judiciary and the rule of law was completely off target. I fully agree with the noble Lord, Lord Pannick, on this. The judiciary is indeed unelected. I remember losing an important case in the House of Lords—I think that the noble Lord, Lord Pannick, may have been on the other side; he is nodding both enthusiastically and with a smile on his face, so I would guess that he enjoyed the victory—precisely because the House of Lords said in answer to my arguments, “No, we are not unelected. We are there to carry into effect the law, even though that is something that the Government do not want to happen at this particular time”.

Having had the privilege of serving in that role, I know what the rule of law means. You have to defend things in front of an independent and sometimes critical judiciary. Sometimes you persuade the judges and sometimes you do not. However, it is absolutely critical to our democracy that they remain and are not attacked in any way.

Where does that leave us? I was struck by the remark by the noble Lord, Lord True, that the judiciary were not elected, so should not have a say. Of course, the people who are elected are in the other place. We are talking about making sure that those in the elected place are there to express the views that their constituents—the people of this country—believe are right. That is what should happen. This debate can be put to an end by whoever becomes the leader of the Conservative Party in the coming days making it clear that that will not happen—but until then, I respectfully say that this Committee should take the step of following the House of Commons by saying, “We should pass this amendment to make sure that Parliament is there and doing its job when Brexit comes around”.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Goldsmith

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Adonis]

My Lords, it seems to fall to me to move the last amendment of Report, as in Committee. However, I am not going to detain the House for long because, having re-read the Committee proceedings earlier, I found myself fully persuaded by the compelling and eloquent arguments made by the noble Lord, Lord Callanan. As his arguments rolled off the page about the intent of the European Union Act 2011 and how it was not intended to address a situation other than a significant accretion of powers to the European Union, I thought it would not be sensible to press this. I am entirely persuaded by the fact that if we are to have a referendum on the treaty that the Prime Minister is negotiating with the European Union, as I believe we will ultimately have, it needs to be on an explicit vote by Parliament and cannot take place as a consequence of the 2011 Act. So, at 10.38 pm, I can bring Report proceedings to a conclusion.

[Lord Goldsmith]

My noble friend was very anxious to bring proceedings to a close at 10.38 pm. Would he be clear as to whether litigation taking place relating to the argument about the 2011 Act has completed? He seems very knowledgeable about that.

[Lord Adonis]

I believe it is still ongoing. Presumably it is perfectly reasonable for it to be ongoing until the 2011 Act is repealed, which it has not been yet. That is a matter for the litigants, not for me.

[Lord Goldsmith]

I am grateful for that. Does it not therefore change my noble friend’s view as to how he wants to deal with this amendment?

[Lord Adonis]

No.

[Lord Goldsmith]

My Lords, there is nothing more I want to say about that, but it would be inappropriate to finish immediately without from these Benches thanking everybody for the part that they have played in this Report stage as we move towards the conclusion of this Bill at Third Reading—and towards 10.40, which I notice it now is.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Goldsmith

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Goldsmith]

My Lords, it must be unprecedented to have such a long and well-attended debate on what is almost the final repeal in the last schedule to a Bill. Given that this is the last debate that we will have in the Committee stage, perhaps I may, as the person who happens to be responding from these Benches, pay tribute to the quality of the contributions that have been made by all sides of the Chamber, including from my noble friend Lord Adonis. I have to say that anyone outside who says that we have been spoiling or somehow wrecking the Bill would not be able to maintain that charge in the light of the clarity and detail of the scrutiny that we have given the Bill.

As to the amendment, I admire the ingenuity which brings it forward. It is clear that the purpose behind it ultimately would be to trigger the referendum-requiring provisions set out in the 2011 Act. There are two ways of looking at that. One is to consider the political nature of the 2011 Act and compare that with what is happening at this stage, where one might well say, if I dare, that it was simply a staging post to the position we find ourselves in now. Many of us find the position of exit an unhappy one, but it would be a staging post to that and it has now passed. There is a legal question which is quite different: whether in fact the conditions in the 2011 Act are triggered. From what the noble Baroness, Lady Ludford, has said, there are legal proceedings which may challenge that, and I do not think it is right for me to venture an opinion from this Dispatch Box as to whether those are right or not.

However, I will venture a political opinion from my position, which is this. We are well aware that there are some in this House, in particular on the Liberal Democrat Benches—we fully respect their views, even if we may not share them—who would like to see a further referendum, and many in the country would like to see that. If that is going to happen, one might say that the way for it to come about is through a direct vote on whether a referendum should be taking place rather than what might seem to be a side wind. And that is my problem with the proposed amendment, even though it is ingenious. I have reason to believe—indeed, I suspect, from what the noble Baroness, Lady Ludford, said—that this House will have an opportunity on Report to express its view directly, full-throatedly and openly about a further referendum. The House will give its view, but I am not convinced about doing it through this route.

[Lord Adonis]

Can my noble and learned friend give his view on whether it is appropriate that the 2011 Act should be repealed in advance of the repeal of the European Communities Act 1972?

[Lord Goldsmith]

It is perfectly appropriate, although I do not like the word “appropriate”, as we all know. Perhaps the answer is that it is not necessary, but it may be appropriate.

I fully respect what the noble Lord is doing. It is not easy to say this but, politically, the 2011 Act was a staging post on the route—as it turns out—to full Brexit, even though some people still hope that we will not go that far, and it has therefore served its purpose. I am not making a legal analysis of whether the conditions in the Act apply because I can see arguments why they may and why they may not; I am explaining why, if there is a suggestion that this House will vote for a referendum, it would be better to do it on an amendment or a Motion that directly raises that question. It can then be fully debated and we can all have our say. For those reasons, I very much regret to tell my noble friend that I cannot support his amendment.

[Lord Callanan]

My Lords, after 115 hours of Committee debate, as observed by the noble Lord, Lord Lisvane, it is somehow appropriate—that word again—that the last and 372nd amendment should be tabled by the noble Lord, Lord Adonis. He referred to our deep and special partnership; I think that is probably going a bit far, but to mark the occasion, I thought I would get him a gift to celebrate his perseverance. The Adonis nut bar is available in all good health shops. He is welcome to collect it later.

In responding to Amendment 372, I want to be very clear about what the European Union Act 2011 does. The Act contains a recent mechanism for two principal goals—first, to provide that where Ministers participate in certain types of decisions, those decisions are specifically approved in the UK. This normally happens via an Act of Parliament. The Act passed last year to approve the decisions—which allowed the participation of Albania and Serbia in the work of the EU Agency for Fundamental Rights and the conclusion of an agreement on competition law between the EU and Canada—is an example of this. Secondly, the Act also provides that where there is a revision to the fundamental treaties of the EU, akin to the treaties of Lisbon or Maastricht, there should be an Act of Parliament—and, in certain circumstances, a referendum in the UK—before the UK Government could approve those changes.

I invite noble Lords to cast their minds back, as some Members have done, to 2011 and the context in which this Act was passed. Sadly, I was not a Member of your Lordships’ House then; I was with the noble Baroness, Lady Ludford—not directly; we were Members—in the European Parliament. The Act was drafted in the context of its time in response to new EU methods of approving treaty changes and calls for more public and parliamentary involvement in such decisions. Its purpose was to regulate decision-making on the UK’s relationship to the EU treaties in the context of the UK as a member state. At that point, the idea of holding a referendum on the UK’s membership of the EU was far from the Government’s mind, let alone undertaking the most complex negotiation in history to recast that relationship with the UK outside the EU treaties.

Of course, everything has changed since then. We are leaving the EU. The 2011 Act is redundant. It is appropriate to repeal redundant legislation. It may even be necessary to repeal the 2011 Act. Amendment 372 would prevent the Bill from repealing the 2011 Act. From previous statements made by the noble Lord, Lord Adonis, I understand that he intends to use the Act in an attempt to secure a second referendum—no surprise there. I will not revisit the positions that we have already covered extensively in debate about the merits or otherwise of holding a further referendum as part of the process of our exit from the EU; no doubt the Liberal Democrats will enable us to return to this matter on Report. We have covered that at length in this Committee; suffice it to say that the Government think, first, that a second referendum is not appropriate and, secondly, that it is most certainly not for this Bill to provide for one.

--- Later in debate ---

[Lord Goldsmith]

To clarify, I did not say that. I deliberately did not express a view as to whether that argument would legally succeed precisely because I understand it is the subject of legal proceedings. I would not want for a moment to pre-empt them.

[Lord Adonis]

My Lords, those legal proceedings will by definition cease if the 2011 Act is repealed soon after the enactment of the Bill.

The second point that was not addressed, which is a matter of some substance, is that, on an issue of this gravity, surely it is not too much for the people to expect of Parliament that the House of Commons itself should expressly vote on the repeal of the 2011 Act. Because of the guillotine Motion in the House of Commons and the limited opportunities there were for debate in the Commons the matter was never debated, let alone voted on. That is one of our responsibilities.

My final point on the final day and the final amendment on the Bill, with such a magnificent attendance by noble Lords on the Conservative Benches, is to address the final point made by my noble and learned friend about taking a decision expressly on the issue of a referendum. I agree that it is a matter we should expressly take a decision on. The point of the 2011 Act is that it is existing statute law and should be repealed expressly only by the House of Commons.

It is clear that the dominating issue that will preoccupy us over the next six to nine months is whether the people themselves should have a say on the terms of the withdrawal treaty. What is already lurking behind the debate—it is, I am afraid, an issue of intense debate in my own party, but I suspect it will spread to other parties—is whether the people should be allowed that final say. It is clear that many people, I suspect including my noble and learned friend and maybe my right honourable friend the leader of the Opposition, at the moment do not think that a referendum is the right course. What is happening is we are having a charade of big debates about what are essentially second-order issues in the House while the consensus is rolling on that, maybe to avoid too big a division of public opinion, we should allow Brexit simply to roll on next year.

That will be the dominating issue of British politics in the next nine months: whether Brexit is a done deal, whether Parliament will debate, with the option of rejection, the Prime Minister’s withdrawal treaty and whether—in considering what is the biggest and most significant issue that has faced Parliament in this generation—before we take the final plunge into the unknown and engage in Brexit, we will give the people a say on the terms of withdrawal. That is a very big and weighty issue to raise at the very last moment of the debate in Committee, but in two weeks’ time we will regroup and start Report. We can rehearse all these arguments again. On that note, I beg leave to withdraw the amendment.