Brexit: Withdrawal Agreement and Political Declaration

Lord Armstrong of Ilminster Excerpts

Thursday 10th January 2019 Lords Chamber

[Lord Armstrong of Ilminster (CB)]

My Lords, the Prime Minister is inviting the House of Commons to approve the withdrawal agreement she has made with the European Union. I am a remainer but, like my noble and learned friend Lord Hope of Craighead, I have reconciled myself to accepting that, if the House of Commons were to approve that agreement, we should leave the European Union in accordance with the mandate in the referendum of June 2016. However, it seems possible—even probable—that there will be no majority for it. Indeed, with the House of Commons as it is now constituted, the only thing for which there probably is a majority is a determination not to leave the EU on 29 March with no deal. But that is the prospect that faces us imminently if the Prime Minister’s withdrawal agreement is not approved.

It is widely accepted that there would be serious economic consequences from crashing out of the EU without a deal—certainly in the short term and probably in the longer term. Some Brexiteers are trying to reassure us by saying, “Don’t worry, it may never happen”. This does not seem a very good basis for sailing confidently into what the Prime Minister has described as uncharted waters. There is too much reason to think that at least some of it will happen. Indeed, it is already beginning to happen.

The clock is at five minutes to midnight. There are a bare 11 weeks to 29 March. There is not enough time before then to negotiate a different deal, even if the EU were prepared to do so. There is not enough time to organise and carry out a second referendum, even if it were thought necessary or desirable to hold one. The immediate priority must be to move back from the cliff edge, postpone the deadline and give ourselves more breathing space.

As far as I can see, there are two ways of doing this. We could seek to defer the deadline and set a new date. Or we could revoke our notice of withdrawal from the EU, which the European Court of Justice has explicitly confirmed that we can do unilaterally. The trouble about simply deferring the deadline is that this would do little to diminish the extent to which Brexit is dominating and distorting public and parliamentary business and industrial and commercial activities. Nor would it mitigate the uncertainty, rancour and deep divisions bedevilling the situation at present. Before long, a new deadline would present us with a new cliff edge.

Given the present state of the House of Commons, it is prudent to assume that it will be difficult, if not impossible, to conclude a deal with the EU that would meet with parliamentary approval in this Parliament. So, if the Prime Minister’s withdrawal agreement is rejected by the other place next week, I believe that she should, without further delay, revoke the notice of withdrawal from the European Union on 29 March and undertake that there will be no further decision to give notice of withdrawal during the life of the present Parliament. That would avoid the perils and tribulations of leaving the EU with no deal. It would give more time to consider in detail and discuss with the EU what we would like to achieve in a permanent relationship with an EU of which we are not a member. It would give more time to legislate for and organise a referendum, if that were thought desirable.

I am not arguing for a second referendum, but the constituency has changed since June 2016, with some older voters dropping out and some newer voters coming in. We hear a lot about the 17 million who voted to leave but less about the 16 million who voted to remain. The majority in the 2016 referendum was relatively narrow, and I do not think it would be undemocratic to give the people an opportunity to confirm their views or change their minds in the light of all that has happened and become known since June 2016. Revoking the notice of withdrawal would enable the Government and Parliament to find time to address the many other important issues on which progress has been delayed or frustrated by the administrative and legislative complexities of Brexit.

For the time being, the Prime Minister has nothing to fear from threats of a no-confidence vote from the vultures on the Back Benches of her party in the House of Commons. She has said she will not lead her party into the next election. So she is in a strong position to exercise the responsibilities of her position as our Prime Minister in the national interest.

If the Prime Minister’s withdrawal agreement is rejected in the other place, it will be very much in the national interest that we should not leave the EU on 29 March with no deal, and that we should be able to consider our long-term relationship with the EU without the deadline hanging over us at present like a sword of Damocles. These suggestions are offered in pursuit of the doctrine I associate with the late Lord Healey:

“When you’re in a hole, stop digging”.

European Union (Withdrawal) Bill

Lord Armstrong of Ilminster Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Armstrong of Ilminster (CB)]

My Lords, my views on Brexit have not changed since our debate on 5 July 2016, after the referendum. I cannot rid myself of the feeling that we are making a great mistake for which our children and our children’s children will pay the price. In preparation for this debate I have been rereading what I said in July 2016 and I wondered whether simply to repeat it today. It would have been interesting to see whether anybody noticed.

In short, I remain of the view that while we have been members of the European Union we have fared better and the country has been more prosperous at home, although there is room for improvement in the distribution of the benefits of that prosperity. Our country has been stronger in its standing and influence in international affairs. That would continue to be the case if we remained in the European Union, but it will not if we do not. I cannot simply dismiss and ignore all the analyses and forecasts which support this view. I do not have much confidence in sunny uplands. We live in a global and competitive world, and we should be favouring multilateral institutions and solutions, not pursuing unilateral, nationalist courses where we isolate ourselves. I fear too that leaving the European Union will prove to be a threat to the integrity of the United Kingdom as well as to the peace process in Northern Ireland and our relations with the Republic of Ireland.

When we come to consider the final proposals on Brexit, we shall need to consider how far the mandate of the referendum in 2016 still has authority. The campaign that led up to it was full of half-truths and fake information, and we now have much clearer knowledge and better information about the probable costs and consequences of leaving the EU than we had in June 2016. That, however, is not the issue for debate today. This Bill is about process, not policy: it is about how, not whether, we set about leaving the European Union. We shall have to come back to the existential decision of policy when we come to approve the deal that the Government will have negotiated with the European Union.

As this debate is showing, there will be plenty of important and difficult issues to be considered in Committee and on Report. I will concentrate on the proliferation of secondary legislation. For years, we have become accustomed to being asked to consider very large Bills, some with 200 or more clauses. It is impossible for Parliament, particularly the House of Commons, to give these mammoth Bills the scrutiny they deserve and that it is our constitutional duty to provide. Many of them contain many proposals for authorising the preparation by government of statutory instruments that convey delegated legislative powers to Ministers, with no opportunities for Parliament to amend them. Some of these instruments contain powers—the so-called Henry VIII powers—to vary or amend primary legislation. I suspect that we should call them the Cromwell powers, really, because Thomas Cromwell started it and it was gleefully taken up by Oliver Cromwell.

The steadily increasing resort to these statutory instruments has led to the steady creep of legislative powers being transferred from Parliament to the Executive. There are now several thousand new statutory instruments every year. Some of them do not require parliamentary approval at all. Many pass without being scrutinised by Parliament. Only some require parliamentary approval before they come into force, and then Parliament can only approve or reject them: it cannot amend them.

Section 2 of the European Communities Act 1972 provided for the incorporation of EU legislation into British law, much of it by statutory instrument. The Bill goes further than that, in that it would allow the Executive not only to confirm the incorporation of European law into British law by statutory instrument, but to vary it in doing so. This implies a large extension of the Executive’s power to make law without adequate parliamentary authority.

As a former civil servant I can understand the Executive thinking that Parliament has neither the capacity nor the resources to scrutinise all these statutory instruments meaningfully. As a parliamentarian now, I think that we have to consider very carefully whether, and if so, how, these instruments can be made subject to more effective parliamentary scrutiny and approval.

If we are to leave the European Union, this Bill is necessary to provide for the process of doing so. Like the noble Lord, Lord Hannay of Chiswick, I hope that it will be passed. It is an important Bill, to which we should give a Second Reading today. It will require—as we have seen in this debate—long and detailed examination in Committee and on Report. It also demonstrates some of the consequences which will follow the decision to leave the European Union, a decision which we shall have to review when we have agreement on the terms of our leaving and the conditions, costs and consequences of leaving are clearly established.

European Union (Notification of Withdrawal) Bill

Lord Armstrong of Ilminster Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Armstrong of Ilminster (CB)]

My Lords, in the referendum on 23 June, I voted to remain. I took the view that the economic prosperity of the UK was likely to be better looked after if we stayed in the EU than if we left. I thought that, for all its failings, the EU was an integral part of the international system created after two catastrophic world wars originating in Europe. It was intended to enable intra-European disputes and differences to be resolved by peaceful means and to give the countries of Europe, acting together in a world increasingly dominated by superpowers, an influence that none could exert on its own. Our history shows that, when there are differences and disputes in Europe, we are inevitably—and to protect our own interests—drawn into them. We should be taking a full part in Europe, not standing aloof from it.

I welcome the way in which the Prime Minister is seeking to restore and strengthen the relationship with our United States allies. Of course, this is very important, but there are limits to the extent to which we should allow ourselves to become too dependent on it. President Trump’s priorities are crystal clear—America first. We are a stronger and safer ally for the United States as part of the EU than we would be on our own.

So I regretted the outcome of the referendum but, whatever one may think about the quality of the campaign, the result was what it was. We have to respect that and pass this Bill. The result was not a legally effective decision; it was, in effect, a political mandate. It was an instruction to the Government and to Parliament to enter into negotiations with the EU for a treaty and to introduce legislation that would give effect to that instruction. The Bill that we are now debating is, in effect, a process Bill. It does not set out the terms for our leaving the EU; it simply authorises the Government to enter into negotiations with the EU for a treaty that would take us out of it. The elected House has approved the Bill by a substantial majority, and the unelected House should not seek to reverse that decision—or, indeed, to amend it.

The negotiations for our joining the EEC, when there were only six member states, were complex enough. The negotiations for getting us out of the EU by unstitching more than 40 years of membership, when there are 27 other member states, are likely to be much more complex. It is very likely that we shall need to invoke the part of Article 50 that allows the period of negotiation to be extended beyond two years.

I cannot see the outcome of the negotiations; the fog is too dense. It may be possible to negotiate an agreement which gives us a reasonably open and comprehensive trading relationship with Europe; which preserves our participation in European scientific, technological and academic organisations—it benefits them as much as us—which allows the continuance of the flow of migrant and immigrant European workers, on which large parts of British economic and social activity have come to depend; which deals with the problems of the border between Northern Ireland and the Republic of Ireland; and which preserves the rights of British citizens who have chosen to live in Europe and of European citizens who have chosen to live in this country. That is a consummation devoutly to be wished for. But there are so many uncertainties and variables that we cannot be sure of it. The EU is under strain for other reasons than Brexit, not least the strains created by the introduction of the euro. There are electoral uncertainties in a number of European countries that could have profound consequences for the European Union.

At the other extreme is the risk of coming out of the negotiations with a deal that is clearly not in British interests. We have been told that we could be faced with a choice between coming out with a bad deal or coming out with no deal at all. That, to me, has an air of political unreality. Surely the Government who presented such an outcome for parliamentary approval would have utterly failed the nation and would have to pay the price for such a failure. There would be a major political crisis at home, as well as a major crisis in our relationship with the EU.

Because the outcome is so uncertain, it is very important that Parliament should be given an opportunity to consider and vote on it when the time comes. I welcome the Government’s commitment to seek parliamentary approval when the probable contents of an agreement are clear, and before any final decisions are taken. I am not a lawyer, but it seems to me that the judgment of the Supreme Court the other day means that whatever parliamentary approval is sought will have to be given by legislation, not by a Motion or a resolution.

By the time the outcome of the negotiations is known, it will be nearly three years, if not more, since the referendum. If a week is a long time in politics, three years are an eternity. When the time comes, the Government will have complied with the political instruction of the referendum, and it will be the responsibility—indeed, the duty—of the Government and of Parliament to look not just backwards at the referendum but forwards to what, in the situation then prevailing, is going to be in the best interests of Britain and the welfare of British citizens, whatever that solution may be, and to set their course accordingly.