Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Brown of Eaton-under-Heywood Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Cormack, although this tends to throw into sharp relief the inability of many of us to match his enviable skills of extemporary exposition.

Over recent months, I have found much of the Brexit process deeply depressing and disheartening, not least the apparent total disregard paid by the other place to the debates held in your Lordships’ House. It is true of course that under Section 13(1)(b) of the 2018 withdrawal Act only the House of Commons has to approve any deal, although under Section 13(1)(d), an Act of Parliament, and therefore your Lordships’ agreement, is required to implement the withdrawal agreement element of any overall deal. Why, however, does Section 13(1)(c) of that Act require a debate on any deal in your Lordships’ House unless it is thought likely to assist the House of Commons in its consideration of these questions? Does it? Do they read our debates in Hansard? Frankly, and sadly, I question that.

In these debates, time and again, I am struck by the quality of your Lordships’ contributions and the depth of expertise and experience that informs so many of them. I say this in relation to the views expressed on all sides of the debate, not merely those that happen to coincide with my own. When I speak of all sides of the debate, there are basically three approaches urged here: one is to buy into the deal; another is to remain in the EU; and the third is to leave with no “overarching deal”, as the noble Lord, Lord Howard, puts it. That final view—the outcome which he and a number of others who have spoken in this debate plainly prefer—is surely there and we need to have regard to it, frightening though I find it, and strongly opposed to it though I am. Therefore, I question whether the binary question of the further referendum proposed by the noble Lord, Lord Newby, which totally ignores and overlooks it, would be the proper one to put before the country.

I am opposed to any future referendum. I am now converted to the view that we should leave the Union on the terms offered, with no further referendum, on 29 March, or as soon as possible thereafter—an extension of a few weeks may be required to enact the necessary implementing legislation. I have no doubt that a short extension would be granted, for the explicit purpose of implementing a deal. As to the sort of long delay proposed by some—Sir John Major, for example, sought 12 months in his letter in Friday’s Times, and the noble Lord, Lord Adonis, suggested a 21-month extension in his “Thunderer” article in today’s Times, in neither case indicating with any clarity what precise purpose such an extension would be intended and expected to achieve—I am profoundly doubtful about whether the other 27 member states would unanimously agree to that. In any event, for my part, I strongly share the view of the noble and learned Lord, Lord Hope, the noble Lord, Lord Bridges, and several other participants in this debate that we should not request this in the first place.

I said earlier how impressed I had been by the contributions of your Lordships on all sides of the debate, but I should perhaps make one exception to that encomium. There appear to be one or two among your Lordships—it would be invidious to name them—who, to my mind, are labouring under a profound misapprehension on our entitlement to extend the Brexit process to negotiate a fresh and better deal. In our latest Brexit debate on 27 February, one of your Lordships said that we should seek a very long extension, if necessary, for a further referendum. So far so good, though as indicated I personally strongly disagree. The speech then went on in a way that seemed clearly to indicate a total misunderstanding of the legal position. It suggested:

“The deadline must be extended well beyond 29 March. Article 50 must be revoked—we are still in time to do that. Then, as full and remaining members of the European Union, we should embark on orderly negotiations to leave the European Union. Once those have crystallised into a concluded agreement, regulating the ultimate arrangements between ourselves and the European Union, that agreement”—[Official Report, 27/2/19; col. 267.]


here I paraphrase—could then be the subject of a further referendum, or, if the electorate were to agree, it would be left to Parliament.

The short point is that if Article 50 is revoked, that precludes any possible right to embark on orderly negotiations. We can revoke Article 50, to quote the language of the CJEU, the Luxembourg court, only if that revocation is,

“unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State”.

Such a revocation would necessarily imply that the United Kingdom is now, after all, intent on remaining a fully committed member of the EU and that we do not simply intend to give a further notification. Abuse of right is an established principle of EU law and it is really difficult to give any more obvious illustration of such an abuse than revoking the Article 50 notice essentially as a device to circumvent the requirement for unanimity of the other 27 for any extension of the two years allowed. There can be no question of the other 27 renewing or continuing negotiations on such a revocation.

I have no wish and indeed no time to weary your Lordships by repeating arguments that I advanced in early debates—although I spared your Lordships in the last one—in favour of accepting this deal but, in common I believe with the great majority of the population of this country and most of those with business interests, I urge the other House to buy into this deal on offer.

[Lord Pearson of Rannoch (UKIP)]

My Lords, would the noble and learned Lord care to comment on a Written Answer I recently received from the Government to the effect that—