Brexit: People’s Vote

Lord Butler of Brockwell Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, it is a pleasure to follow the noble Lords, Lord Grocott and Lord Shinkwin. It is also refreshing because we have had 30 consecutive speeches in favour of a referendum and we have finished with two powerful ones from them. I do not relish the prospect of a further referendum. I agree with the noble Lord, Lord Lamont, and others who think that it would be horribly divisive. But I do not think that that can be a sufficient reason in a matter of this importance to funk it. We have to face up to the need for it.

I have always believed that the British people should be able to make as informed a decision as possible on the subject. The decision made in 2016 could not have been informed because the terms of our departure were not then known. So when the terms are known, unless Parliament is confident beyond peradventure that they satisfy what the people voted for in 2016, there is a duty to allow people to review their decision.

Leavers should want that too. The leavers may well win a further referendum as they won the 2016 referendum. If so, although I would personally regret that decision, I agree with my noble and learned friend Lord Brown of Eaton-under-Heywood that it is an outcome greatly to be desired. Then, leavers and remainers will be secure in knowing that the people have taken as informed a choice as possible. There can then be no recrimination if things turn out badly. If they lose, and the people decide to remain, the leavers will then avoid the charge that they have strong-armed the British people into something which, once informed, the British people did not want.

Why, then, should leavers oppose a further referendum? I have always respected those who argue for leaving. I have always acknowledged that there are good arguments for leaving this flawed and in many ways corrupt organisation. But if the reason governing those who oppose a further referendum is their fear that the people may change their mind and vote to stay, I have to say that is not a responsible or even honourable position. People should not be strong-armed into doing something which it turned out that, once informed of the terms, they do not want to do. Maybe the people will vote to leave. Maybe they will not. Without a further referendum we will never know, and this is too important an issue on which to act in ignorance.

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[Lord Callanan]

I am afraid that the noble Lord again is mistaken. There is a very clear answer to that. Again, the EU withdrawal Act, which we debated extensively in this House, sets out what happens if there is no deal or Parliament rejects the deal the Government have negotiated. In such circumstances, within 21 days of that the Government must put forward a Motion in the House of Commons in neutral terms outlining how we propose to proceed. What happens in such circumstances is very clear. We debated it at length and that is now in the statute that we passed.

Thirdly, and finally, it is a well-established feature of our constitution that the Executive represent the country in international diplomacy, and this constitutional arrangement continues to apply to our withdrawal from the European Union.

There is a very real risk that the continuing campaign to overturn the referendum decision to leave is seriously undermining our negotiating position. If those on the other side believe that we may change our minds—

[Lord Butler of Brockwell]

I am very grateful to the Minister. Is he not making, from his point of view, a pessimistic but rather revealing statement when he says that a further referendum would overturn the decision of the British people? It would not necessarily overturn it, but apparently he thinks it would.

[Lord Callanan]

Actually, he does not think it would. There is a very real chance, if there were another referendum, that we would get the same result in spades. Of course, we will never know, because we are not going to have another referendum. My point is that it would provide at least a year, possibly longer, of total political and economic chaos, were we to go down that route.

As I set out, undermining the negotiating position—as many people are trying to do—will do nothing but guarantee a bad deal for the UK, something I think we all wish to avoid.

Brexit: Financial Settlement

Lord Butler of Brockwell Excerpts

Tuesday 11th September 2018 Lords Chamber

[Lord Callanan]

We are confident that there will be a deal but, as I said, if there is no deal, the financial commitment agreed to in the context of a deal will no longer apply. As I said, we will meet our legal commitments.

[Lord Butler of Brockwell (CB)]

My Lords, as a member of the EU sub-committee chaired by the noble Baroness, Lady Falkner, I can say that the Minister quoted it correctly. There is no enforceable action by law, but the committee never denied that the UK would have moral commitments.

[Lord Callanan]

I hope we will not get into these scenarios. The Vienna Convention on the Law of Treaties 1969 has been mentioned and that might also apply in such circumstances but, as I said, we do not want to get into these scenarios. We are confident that we will reach a deal and as part of that deal we have agreed a financial package.

Brexit: Preparations and Negotiations

Lord Butler of Brockwell Excerpts

Monday 23rd July 2018 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, not for the first time in this House, I find myself in agreement with the noble Lord, Lord Bridges. I feel that, if we have to be critical of the Government’s White Paper, we have a duty to be constructively critical. It is very tempting for opposition parties and for remainers like me to be entirely destructive—and there is plenty of scope for it—but we have to remember that the Government and the EU are involved in a negotiation that is more important than any other in our recent history. This is not a political game.

I believe that the proposals in the White Paper on trade in goods are more realistic than the Government’s previous total rejection of the single market, because no other basis has been put forward that is credible as a means of achieving frictionless trade and the avoidance of physical checks at the Irish borders, including the Northern Ireland border.

The much-criticised acceptance of the common rulebook on goods has been described as a compromise, and indeed it is. For some people it is a compromise too far, and they fear that in the course of negotiations the Government will make further concessions, as they are described. I do not see it that way; I see the White Paper very much as a wish list, and the Government and the Prime Minister described it as ambitious. I doubt whether we will achieve all the objectives in the White Paper. Indeed, it might fall at the first hurdle of securing EU agreement to our collecting EU tariffs on its behalf—although I hope that it does not. But I do not see failing to achieve all the objectives as the same as making further concessions.

One area where sceptics fear further concessions is on immigration policy. I hope that we will have an immigration policy that is liberal enough to admit people whom our economy and public services need. But the Prime Minister is surely right that the White Paper respects her red lines by making it clear that it will be our decision. EU rules already provide that EU citizens who wish to live in another member state must be able to find work or be self-sufficient. I regard it as a tragic irony that our Government have never sought to apply those requirements, which would have satisfied the concerns of many who voted for Brexit because of their concern about EU migration.

I am determined to observe the advisory time limit, so, as a member of the House’s EU Financial Affairs Sub-Committee, I will add just one thing about financial services. I think that the noble Lord, Lord Davies, and the noble Baroness, Lady Smith, were a little unfair to the White Paper in saying that it had nothing to say about financial services or that it had abandoned them. The White Paper proposes that in this area, which is so important for the UK, we should rely on achieving an agreement for what is described as “enhanced equivalence”.

The EU sub-committee has hitherto taken the view that equivalence is not a satisfactory basis for our relationship because it does not provide long-term reliability for financial service providers. The Government no doubt feel that access to UK financial services is sufficiently important to the EU that it will agree to an enhanced regime. I was therefore disappointed to see in the Financial Times this morning that Monsieur Barnier was quoted as having ruled out the possibility of enhanced equivalence in his remarks on Friday on grounds that I regard as specious—that it would infringe too much on the EU’s ability to make its own regulations. I believe that the EU could be more flexible about that, and I am comforted by the fact that Mr Barney Reynolds of New Direction has published a pamphlet arguing that an agreement for enhanced equivalence along these lines should be easily negotiated. Indeed, he has published a draft EU regulation for it. Can the Minister tell us whether the Government have seen Mr Reynolds’s pamphlet and whether they agree with it?

I feel that, if we are to leave the EU, we have a duty to be constructive about the proposals in the White Paper. As the noble Lord, Lord King, said, quoting the Times and Winston Churchill, the proposals in the White Paper might be the worst basis for negotiations apart from all the alternatives. Having said that, I have never disguised from the House my view that, despite the manifold imperfections of the EU, it would be better for the UK, the EU and the world if we were to withdraw our notice under Article 50 and join in reforming the EU from within.

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[Lord Butler of Brockwell]

Nor did I mention it today.

[Lord Mandelson]

I should have been on that list.

European Union (Withdrawal) Bill

Lord Butler of Brockwell Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Callanan]

Yes, I am absolutely confirming that: the principles will continue until the end of the implementation period.

Changes to the law should be taken forward by proper processes allowing for them to receive full consideration by those affected. The Government have acted—

[Lord Butler of Brockwell (CB)]

This is a very important point. Will the means of enforcement continue until the end of the implementation period?

European Union (Withdrawal) Bill

Lord Butler of Brockwell Excerpts

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

[Lord Hannay of Chiswick]

My Lords, I rise to support Amendment 95 and also Amendment 99, both of which stand in my name as well as those of other noble Lords. The case for these amendments has been stated clearly and cogently by the noble Duke who has spoken before me, and I shall put it quite succinctly.

First, as the noble Duke said, there was no reference to the date of our exit from the EU in the Bill as it was originally drafted and tabled by the Government about a year ago. It is a fair assumption therefore that, in the Government’s view at that time, putting the date in this Bill was neither necessary nor desirable. If it had been either of those things, it would have been in the original Bill. Its inclusion at a later date was a purely political decision—alas, another of those sops to one of the all-too-frequent outbursts from the Government’s Brexit-at-any cost supporters.

Secondly, the date seeks to pre-empt, or at least to make far more difficult, the use of one of the key provisions of Article 50—that which enables a two-year cut-off date to be extended by common accord of the 27 and the exiting state, the United Kingdom. Today is not the moment to discuss the eventuality under which that provision for an extension might arise, but it is surely premature today to seek to rule out at this stage that possibility, particularly since the post-negotiation withdrawal and implementation Bill, to which the noble Duke referred, could provide an opportunity to do that if by that stage it was clear beyond peradventure that the provision of an Article 50 extension was not going to be required or needed.

[Lord Butler of Brockwell (CB)]

Can my noble friend clarify one point? I think the noble Duke said that such an extension could be for only a few weeks because it could not extend beyond the date of the European elections. Is that correct?

[Lord Hannay of Chiswick]

That is a political judgment about the views of the 27. It is not a political judgment on the views of the British Government, who have always said that they would never under any circumstances propose such an extension—one of those statements which I fear they may have to eat cold at some stage. The answer to my noble friend’s question is that it is a political judgment about the attitude of the 27. I do not think that today we can rule it in or rule it out, and I do not think we should.

Thirdly, we have heard from the Government Benches on a lot of occasions during the passage of this Bill that this is a purely technical Bill; I think the most recent occasion was earlier this afternoon. It is a technical Bill designed simply to prepare our statute book for exit day and that it is not a proper vehicle for policy formulations, in which case, and on that analysis, I suppose the Minister will shortly rise to his feet and accept the amendment, which I would certainly encourage him to do.

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[The Duke of Wellington]

My Lords, I will respond first to the pertinent question from the noble Lord, Lord Butler. I did not mean to imply that, under the Article 50 process, there could not be a longer extension. I just feel that, as a practical matter, it is unlikely to be practical to extend for more than a few weeks, because the European Parliament will indeed be dissolved in late April prior to the European elections in May 2019.

[Lord Butler of Brockwell]

Are we not talking about two types of extension? As the noble Baroness, Lady Hayter, said, the European Parliament will have to approve or disapprove the agreement before it adjourns. But it could agree a deferment of the date on which the UK leaves the EU by a much longer period, could it not? It would be within its power to do that.

[The Duke of Wellington]

With the unanimous agreement of all members of the European Council a delay can be agreed without a term. That is unlikely. I referred to the European Parliament elections because that is a practical deadline in this process. That is the point there.

I agree strongly with the point made by the noble Lord, Lord Grocott, that this Bill must be passed. There is no doubt that we need this Bill for the good governance of the country, as I said earlier and at Second Reading. However, I do not agree that this should be construed as a device to delay Brexit by more than a short period for technical reasons.

I agree with the noble Lord, Lord Cormack. He said that we have a duty to improve this Bill and we have done so in many ways in the 10 or 11 amendments that we have so far passed.

This amendment and the related amendments give the other place an opportunity to think again about the expediency of including a date in this Bill, and it is right that we should test the opinion of the House.

European Union (Withdrawal) Bill

Lord Butler of Brockwell Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Butler of Brockwell (CB)]

I ask the Minister to clarify one other point, which we did clarify in Committee: if Parliament rejects this agreement, is the only alternative that the Government are offering leaving with no agreement at all?

[Lord Callanan]

If Parliament rejects the agreement, there is nothing for us to legislate further on. It has been rejected. The Article 50 process that Parliament voted for will then kick in: we will leave on 29 March 2019. I repeat that we expect and intend this vote to occur before the European Parliament votes on the deal. If Parliament supports that Motion, we will bring forward the withdrawal agreement and implementation Bill—a piece of primary legislation to give the withdrawal agreement domestic legal effect. Of course, that will be amendable. This is in addition to the ratification process that is a requirement under the Constitutional Reform and Governance Act 2010.

Additionally, the Government will introduce further legislation where it is needed to implement the terms of the future relationship into UK law, providing yet more opportunities for further and proper parliamentary scrutiny.

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[Lord Wigley (PC)]

My Lords, I am glad to support Amendment 50, to which I have added my name, which was moved so effectively by the noble Lord, Lord Newby. I will add a few comments of my own to explain why it is essential that a provision along these lines is incorporated into the Bill we send back for further consideration to the elected Chamber.

I make it clear that I have a great dislike of referenda as a tool for sanctioning complex legislation. A referendum may be all right for approving a simple, transparent, binary issue which cuts across traditional party divides, such as opening the pubs on Sundays in Wales, as was mentioned in Committee. The more complex the issue, the more inappropriate a referendum is. However, the genie is already out of the bottle. There is a valid question as to whether a decision taken by referendum can—or perhaps I should say should—be overturned by a vote by Members of Parliament or by a general election, and certainly not by Members of an unelected House. None the less, those MPs who at last year’s election gave their constituents a pledge that they would do everything in their power to ensure that the UK remained in the European Union are duty-bound to redeem that pledge by the way they vote, as are MPs who committed in the opposite direction.

By this amendment we would facilitate MPs having a choice at their disposal when the Bill goes back to them—and in fact, they would have two choices. The first is the fundamental one: that MPs can return to the question of whether the Bill should be amended by them to provide a referendum in circumstances where they deem that appropriate. If we reject this amendment tonight, we would in effect prevent MPs giving further thought to that issue. When circumstances change, sensible MPs may want to change their minds. However, unless we give them the hook on which to latch any initiatives relating to a referendum, we essentially lock out the question of a referendum in any circumstances whatever.

The second area of choice we would facilitate by this amendment relates to the circumstances in which a referendum may be required. I believe that if the Government were able to negotiate a deal which enabled the UK, while leaving the EU, to continue to have a customs union relationship with the EU, and which enabled our industry and agriculture to participate in the single market, as outlined in the Welsh White Paper put forward by the Welsh Government and opposition parties last year, that should be endorsed by MPs without a further referendum. Not least, such an option would resolve both the Ireland and Gibraltar issues, which would be as good a compromise as we are likely to achieve. If, however, the Government fail to reach a satisfactory agreement which protects the interests of exporters and those who depend on the availability of EU workers to meet their needs, and if they secure no agreement at all and we face the utter disaster of a cliff edge prospect, MPs must be allowed to revert the issue back to the people. If voters then endorse a no-deal exit from the EU, with all that that means, so be it.

Some noble Lords may well argue that the decision at that stage should be taken by MPs and that they, if they are so minded, should have the option of overturning the referendum outcome. There are, of course, two basic reasons why this may not be possible. The first is that the Government have repeatedly—and again today—stated that the only option other than the negotiated settlement will be to quit the EU without agreement; essentially, on world trade terms. The Government continually refuse to give MPs or this Chamber the option of being able to reject a hard Brexit. In these circumstances, I believe that MPs should be allowed the option of considering a confirmatory referendum as one outcome. This amendment gives them that option. It allows them the maximum flexibility: it does not instruct them to hold a confirmatory referendum but it allows MPs to go down that path, if circumstances so dictate.

It is for these reasons that I implore colleagues, even if they share my dislike for referenda, to pass this amendment tonight and, by so doing, to enable MPs when this Bill returns to them shortly to keep the referendum option open and, in the fullness of time, to use it if, in their judgment, that is the only way to ratify or reject a worst-case scenario of leaving the EU without agreement. I commend the amendment to the House.

[Lord Butler of Brockwell]

My Lords, I have put my name to this amendment. Although I have always maintained that the people ought to have the opportunity of a referendum on the terms of our leaving the European Union, as the noble Lord, Lord Wigley said, this amendment does not mandate such a referendum. It gives Parliament the option of a referendum if, and only if, Parliament believes that the terms secured by the Government would be more damaging to our country than staying in the EU.

I supported the amendment that the House has just passed. Of course Parliament should be allowed a wider choice than the choice which, as the Minister admitted, the Government intend, and of course we must hope that the Government secure a good agreement. But Parliament should not be limited to what the noble Baroness, Lady Hayter, described as a Hobson’s choice between a bad agreement and no agreement at all. For that reason, I will also support Amendment 62 in the names of the noble Lords, Lord Cormack, Lord Reid, Lord Deben and Lord Balfe.

Although no one relishes the idea of a further referendum—I certainly do not—I believe that Amendment 50 is the logical consequence of the one that the House has just passed, which says that, if Parliament withholds approval of the withdrawal agreement, the Government must follow any direction approved by the House of Commons and considered by the House of Lords. I have considerable sympathy with the arguments advanced by the noble Lords, Lord Howard and Lord Lamont, against Parliament giving instructions to the Government. However, I believe that there will, in effect, be no choice for anybody about the instructions that would have to be given. About this, we have to be realistic. Whatever agreement is reached will be the result of long and painful negotiations. We cannot realistically expect the EU to be willing to reopen the negotiations and give us better terms at the behest of the UK Parliament—that is simply not a possible prospect.

It is in this respect that Amendment 50 goes further than Amendment 49. It recognises, in keeping with my view, that the only alternative to an unacceptable agreement is no agreement at all. That is not acceptable. The only other option is to withdraw our notice under Article 50. We must be honest that that is what a rejection of the agreement would entail. At the same time—

[Lord Green of Deddington]

I have listened very carefully to the noble Lord, but what would be the terms? We do not know for sure that we can lift our Article 50, but nor do we know—and nor would we know if a referendum were called—what terms we could return on. Would we get the same rebate? Would we have to undertake to join Schengen or the euro and so forth? Surely, we cannot assume that 27 countries will give us a completely clean return. Therefore, it would be rather difficult to know what the two options for the referendum were.

[Lord Butler of Brockwell]

That is precisely the point that I am making. We certainly cannot be sure that, if the agreement were rejected, the EU would give us better terms. I do not believe for a moment that it would. In that case, the only other alternative is to think again about our notice under Article 50. That is what we need to face up to.

The amendment acknowledges that, since the decision to leave the EU was taken by the British people, a decision to withdraw our notice could also be taken only by the British people. That is where a further referendum comes in. It is not ignoring the will of the people but submitting to it. I realise that those who believe that the United Kingdom should leave the European Union oppose submitting the view of Parliament to a decision of the people. But I find it difficult to see why they regard themselves as more democratic than those who favour giving the people the final say.

Amendment 50 is also realistic about the timetable, as the noble Lord the leader of the Liberal Democrats in this House has said. An agreement even in broad terms will not be reached until this October at the earliest. If Parliament rejects the agreement, time will be needed to legislate for a referendum and hold it. That would, in all likelihood, be impracticable before March 2019. So the amendment requires the Government to seek an extension of the Article 50 period for that purpose. It would, as has been acknowledged, be up to the EU partners to decide on whether such an extension should be granted, but if there is a prospect that it could enable the UK to stay within the EU, I believe that it would be granted.

Those who have reservations about a further referendum should not feel that they would be committing themselves by supporting this amendment tonight. It would be an option if, and only if, Parliament finds the outcome of the negotiations unacceptable. At that point, it would be the only option. But the amendment ensures that Parliament would at least have that option, and I urge the House to support it.

[Baroness Wheatcroft (Con)]

My Lords, I support the amendment. It is increasingly clear that the public want a vote on the final deal. Perhaps it is not surprising that, asked whether the public or politicians should have the final say, a majority is very clear that it should not be the politicians. They feel that they have been let down by the politicians. The Brexit that was dangled before them no longer seems to be on offer—the land of milk and honey that came with no bill attached was never going to be a reality and the people are waking up to that now.

Earlier this month, I attended the launch of the campaign for a people’s vote on the deal. I confess that it was the first time that I had been inside the Electric Ballroom in Camden, but it was an upbeat and optimistic gathering. By contrast, according to the pollsters, the category of optimistic leavers is shrinking very fast. At the Electric Ballroom, there were eloquent speeches from people who are not the usual suspects. The actor Sir Patrick Stewart talked passionately about his fears for a country that was headed in the direction that this one is. A leading surgeon spoke of the damage that Brexit is already inflicting on the NHS, with doctors and nurses leaving. People working with student unions stressed how strongly young people feel about having a vote on the deal; I know at least one person in this House who was vigorously opposed to the idea of a referendum who has changed his mind because he says that his grandchildren would never forgive him if he did not support the amendment.

European Union (Withdrawal) Bill

Lord Butler of Brockwell Excerpts

Monday 19th March 2018 Lords Chamber

[Lord Foulkes of Cumnock]

I am grateful to my noble friend—this is a wonderful House, where you get so much support in so many ways. The sooner we get out of this and return to the status quo that has done this country proud for the past 40 years, the better.

[Lord Butler of Brockwell (CB)]

My Lords, I put my name to the amendment in the name of the noble Lord, Lord Newby, when it was Amendment 181. I would have put my name to his amendment today but I did not have the opportunity to do so over the weekend.

In my speech at Second Reading I agreed with others that this is not an appropriate vehicle to require a further referendum on our leaving the European Union. However, I said that I would support any amendments necessary to ensure that a further referendum would be among the options in Parliament’s meaningful vote at the conclusion of the negotiations. The amendment in the name of the noble Lord, Lord Newby, is such an amendment.

I have feared throughout that the choice the Government intend to give Parliament at the conclusion of the negotiations is, “this agreement or no agreement”. I am sorry to say that what the noble Lord, Lord Callanan, said in our debate last Wednesday confirmed that this is indeed the Government’s intention. I hope that he will tell me I am wrong, but I think it was clear from what he said last week that that is what the Government propose to do. Of course, we must all hope that the agreement that emerges from the negotiations will be good for the UK—but the Prime Minister has famously said that no agreement would be better than a bad agreement. It would be entirely wrong if the only choice given to Parliament at the end of the negotiations was between an agreement, however bad, or no agreement at all. I know that the Prime Minister and the Government feel that they have an instruction from the people to take Britain out of the EU—but I cannot believe that a bad agreement is a correct interpretation of the wishes of a majority of the people as expressed in the referendum. If Parliament judges the outcome of the negotiations to be bad, a better alternative must be to think again before we drive the nation over a cliff.

Like the noble Lord, Lord Newby, I cannot get out of my mind my noble friend Lord Lisvane’s aunts, whom he described so graphically at Second Reading. If, having voted to go to cinema, they find that the two films available are ones they do not want to see, the only sensible course must be to think again about going to the cinema at all. If that is true for my noble friend’s aunts on a Saturday evening, I suggest that it is certainly true for the nation as a whole in one of the most important decisions that we will have to make in our generation.

[Lord Forsyth of Drumlean]

To take the cinema analogy further, does the noble Lord not think that if the European Commission thought that there was a possibility of a second referendum, it would be likely to put something on at the cinema that would be even scarier for the maiden aunts?

[Lord Butler of Brockwell]

My Lords, I had expected that intervention. If that is the EU’s tactic, it has plenty of ways of doing it, and plenty of motive for doing it, other than just producing a bad agreement.

As others have said, it is quite clear that, since the people voted in a national referendum to leave the European Union, that decision could be reversed only by the people. That would require either a further referendum or a general election in which the people had the opportunity to elect a Government with an explicitly different mandate. In those circumstances, I suspect the Government themselves would prefer a further referendum.

Ever since the referendum, I have argued that the British people are entitled to a further say when the terms of the UK’s departure are known. I still hold that view, but that is not the case which I am arguing today. The purpose of this amendment is simply to ensure that a further referendum remains an option if the negotiations do not turn out as well as the Government hope.

To say that Parliament’s so-called “meaningful vote” can be a choice only between a bad agreement and no agreement would be an outrage. I shall listen carefully to what the Minister says in his reply, but I am afraid that the Government intend that the meaningful vote will be simply a binary choice between the outcome of the negotiations and no agreement. In that case, I hope that the House will support an amendment on the lines of that proposed by the noble Lord, Lord Newby—if not this evening, then on Report.

[Viscount Hailsham (Con)]

My Lords, I had the opportunity of speaking at some length last Wednesday to my Amendments 216 and 217, when I explained my thinking fairly fully, so I shall be brief today. I shall say simply that I wholly support what the noble Lords, Lord Butler, Lord Newby, Lord Wigley and Lord Foulkes, have said about this matter. It seems of cardinal importance that we should give to the British people a chance of expressing a final view as to whether we leave. They must have the choice of staying in the European Union if that is their wish. Personally, I am inclined to think that Parliament could make that decision of its own motion, but I recognise that, once a referendum has been held, it might decide that it had no choice but to test its own opinion by recourse to another referendum, which would be conducted with the full situation apparent to the entire electorate.

I fear, as does the noble Lord, Lord Butler, that the Government have it in mind to put to the British Parliament a choice of either the deal or no deal. I would find that profoundly offensive. I could not support such a situation. I doubt I could support a Government who made that their platform. It has to be right for Parliament and probably the electorate to have a choice between remaining in the European Union or accepting the terms on offer. It has to be a genuine choice, otherwise the concept of a meaningful vote is without meaning.

Brexit: Deal or No Deal (European Union Committee Report)

Lord Butler of Brockwell Excerpts

Tuesday 16th January 2018 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, one of the many virtues of committees of your Lordships’ House—I congratulate the European Union committee on this report—is that they examine issues in depth and bring out important points not hitherto recognised. I remember the surprise that I and other members of the Financial Affairs Sub-Committee under the noble Baroness, Lady Falkner, felt during our inquiry last year when we were advised that if the EU failed to reach an agreement with the UK, it had no enforceable means of extracting a divorce payment from us.

In my contribution I want to concentrate on not the merits or prospects of a deal versus no deal but on a procedural point in the Select Committee’s report, which, if I have understood it right, surprised me and seems to me important. It relates to what the Government have described as the implementation period following the UK’s departure from the EU in March 2019, and others have described as the transition period. I had assumed—I think this is common ground among those who have spoken this evening—that whether or not the EU and the UK reach a comprehensive agreement by March 2019, everything will continue as now during the transition period subject to the fact that the UK will have left the EU. In other words, there would be a standstill before any divergence began to take place. Those of us who were sceptical about whether a comprehensive agreement on the future relationship could be reached by March 2019 thought that further negotiations could take place during that transition period. That, again, seems to be widely accepted.

The point that has emerged from my reading of the committee’s report is that whatever we may pass into UK law, Article 50 may not by itself allow our partners to provide us with a standstill period after March 2019. If the House will allow me, I shall quote from paragraphs 131 and 132 of the committee’s report:

“it is not clear whether, in the absence of an agreement on future relations, Article 50 would provide a legal basis for an open-ended ‘standstill period’ … It also seems unlikely that Article 50 could provide a legal basis for the implementation of the agreement on future relations, which the Government has conceded will have a separate legal base in EU law, such as Article 218 … Any or all of these questions could fall to be determined by the CJEU, following references by the European Parliament or by a Member State, before withdrawal takes effect”.

The committee continues:

“We therefore recommend that, as a matter of urgency, the Government should set out its views on transition, including on the bases in EU law for the various elements that make up transition. If possible, the Government should secure agreement on these issues with the EU’s Chief Negotiator”.


The Select Committee goes on to suggest that, unless we can reach a comprehensive agreement on the terms of our future relationship before March 2019, the only reliable basis for a standstill transition period may be by seeking to postpone our departure from the EU. If that is correct, it explains why the Government have asserted that, to leave in March 2019, they will reach a comprehensive agreement on the basis of our future relationship before then, and why they describe the period after March 2019 as an implementation period. However, it is generally accepted that this requires the negotiations to be successfully completed by this autumn to allow time for approval by the UK and European Parliaments. That is widely regarded by commentators, including the Select Committee, as unrealistic. If it is unrealistic, it throws into doubt the repeated assertions by government spokesmen that the UK will leave the EU in March 2019 with a standstill period for implementation thereafter.

Can the Minister therefore address the following question in his reply? Is the Select Committee correct in saying that Article 50 is a doubtful legal basis for a standstill transition period after March 2019 and that, absent a comprehensive agreement on our future relationship, the only secure basis for such a transition period will be to seek a deferral of the UK’s departure from the EU? I noted that the noble Lord, Lord Kerr, was reassuring on the legal point, but it would be good to have the Government’s view.

--- Later in debate ---

[Baroness Falkner of Margravine (LD)]

My Lords, in his absence, perhaps I may also refer to the sterling chairmanship of the noble Lord, Lord Jay, of the EU Select Committee while the noble Lord, Lord Boswell, was indisposed. I am grateful to him for having taken us through this report in the way he did. I should declare that I am married to an EU national and that, like the noble Lord, Lord True, I own a property in Italy. It has also belatedly struck me that I need to welcome the noble Lord, Lord Callanan, to the Dispatch Box. I know that he has been in his role for rather a long time, but this is the first opportunity I have had to interact with him. We had extremely positive interactions while he was a member of the committee, and we miss him. However, he has been nobly replaced by the noble Baroness, Lady Neville-Rolfe, who is in her place behind him, so as a committee we are all secure and well.

From different perspectives, the noble Lord, Lord Hamilton of Epsom, and my noble friend Lord Teverson criticised our evidence-taking sessions for not having spoken to enough people who were cheerleaders for the no deal faction. I know that this will not please the noble Lord, Lord Hamilton, but the remit of the EU Select Committee is to look at the impact of EU legislation on the interests of the United Kingdom, not those of German car makers, Italian prosecco producers or French fishermen; it is domestic. I therefore need to say to him that we did take evidence from people who are cheerleaders for Brexit and have come out very definitively in support of that cause. I cite Mr John Longworth, the co-chairman of the Leave Means Leave campaign, and Dr Ruth Lea, whom I have known for a good 25 years. She is an eminent economist and commentator on the financial services sector. Interestingly, although both are Brexiters, they took different positions. Dr Lea thought it would be disastrous if we had a no deal scenario, whereas Mr Longworth is frequently quoted in the press and made it clear to us that he really does mean that leave means leave, and that, frankly, if it happened tomorrow it would be all the better rather than bothering to negotiate anything with the EU.

In addition, the committee received more than 40 pieces of written evidence. Again for the interest of the noble Lord, Lord Hamilton, we put out a call for written evidence in order that anyone and everyone who wished to write to us was free to do so. Interestingly, not one item of the written evidence we received suggested that we ought to leave without a deal. So the evidence we received was fairly overwhelming.

We held nine oral evidence sessions. If we count the two from the Brexit camp, it means that roughly 20% of the evidence we took was from people who are in that camp. In the debate today, in which any number of noble Lords were able to sign up to speak—every Peer who wishes to be heard will be heard—by my reckoning we have had four people who believe that a no-deal scenario is perfectly fine. We have yet to hear from the noble Baroness, Lady Deech, so I will be generous with my figures, but I anticipate that by the time we finish the debate, we will have heard from 20% of speakers, just as we did in our evidence-taking sessions, who believe that no deal might be okay. However, we tend to go where the evidence takes us, so on the whole we were told that it would be pretty disastrous for the United Kingdom. I therefore tend to disagree with my noble friend Lord Teverson when he says that we did not take evidence from the other side, but perhaps he was not present for that session.

I also have to disagree with the noble Lord, Lord Kerr, who is not in his place, that we are in no danger of a no-deal scenario. I have mentioned that I am married to a German national. The House will be pleased to hear that, so concerned are we, on the basis of the analysis we have seen that a no-deal scenario might develop, two weeks ago my husband became a British citizen because he was not going to rely on the guarantees given on citizens’ rights or anything else. We accept that when the EU says, “Nothing is agreed until everything is agreed”, it means that, but I agree with the noble Lord, Lord Kerr, that the report has been overtaken by events. Of course, the December Council changed the mood music of “Nothing is agreed until everything is agreed”, but, alas, the noble Lord, Lord Kerr, is being rather sanguine when he thinks that citizens’ rights is a done deal, the budget is a done deal and all that. He mentioned today’s Financial Times: he only has to look at today’s Financial Times, or, indeed, the Times, to see that the Irish border question is still very far from agreed and the question of citizens’ rights is being reopened at the behest of the eastern European countries, which now want further rights to be given during the transition period, beyond what was agreed at the December Council or that the British Government have indicated they will give. So there is still a strong possibility that things will not go the way that the United Kingdom want or, indeed at the last moment will break down. The default position that the noble Lord, Lord Wigley, and others have commented on, where events lead us to an inevitable position where things go wrong, still very much exists.

I am sorry that the noble Lord, Lord Kerr, is not in his place, but I will also challenge him on what he referred to as the rash suggestion of the EU Financial Affairs Sub-Committee, which I have the privilege and honour to chair, when it published a report to say that the EU had no legal recourse to oblige the United Kingdom to make continuing payments to the EU after it had stopped being a member. We took evidence for that report from European Union legal advisers as well as people from within the European Union who are lawyers. That finding has never been challenged. Mr Barnier told me, on the delegation led by my noble friend Lord Teverson, that he had read the report. I know that the Chancellor of the Exchequer and the Foreign Secretary have read the report and numerous think tanks in Brussels have told me personally that they agree with our conclusions, CEPS being one of them, a very reputable economic think tank.

[Lord Butler of Brockwell]

I am very grateful to the chairman of my committee for giving way. If I may defend the noble Lord, Lord Kerr, I do not think he was challenging that conclusion of our committee. What he was saying was that, even if there was no enforceable means for the EU to extract a divorce payment, having made an agreement the UK would never walk away from it. That, I think, was the point he was making.

[Baroness Falkner of Margravine]

I am grateful to the noble Lord for saying that. I heard that, yes, and I agree with that part of it, but what I was saying was that, across the House today, we have heard people criticising us very selectively when they do not like the tone of the report. The noble Lord, Lord Kerr, said that there would be legal consequences of what he described as rash suggestions. The point is that you go where the evidence takes you. That is what the EU committees are known for doing, which is why EU Committee reports are so widely respected across the EU, not just in the United Kingdom. I thank the noble Lord, Lord Butler, for being slightly fairer, perhaps, than I was being to the comments of the noble Lord, Lord Kerr.

Beyond the no-deal scenario, there is another important scenario and that is the scenario of transition, which I shall now touch on. We took evidence from across the EU Committee and from the Financial Affairs Sub-Committee about the need for such a scenario. I will not pre-empt our report, which will be coming out shortly, but the importance of transition is, to us, not to be underestimated because it gives legal certainty to business, to sectors like financial services which the noble Viscount, Lord Trenchard, commented on. It gives legal certainty to businesses that there will be a period, whether you call it an implementation period or a transition period, a standstill period where businesses can plan for the end state. However, the importance of the transition period will be negated if we do not know what the end state is. Will the Minister, in summing up, tell us whether it is still the Government’s intention to try to negotiate a transition period by March, which is what the Secretary of State told us, and to enshrine the legal basis of that transition period in the withdrawal agreement?

My final comment on the transition period concerns what will happen if we are not able, for whatever reason, to negotiate a transition period along the lines that we want. Again, we have heard some negative comments coming from the EU, where that will be used as a negotiating position. I draw attention to paragraph 99 of the committee’s report where another option was put down by one of our expert witnesses, that of extending EU membership. Professor Catherine Barnard from Cambridge University—this will be my last substantive point, lest the Government are concerned that I am going to go on too long—told us that we could, by using Article 50(3), have any date in the withdrawal agreement that we wished, if we could negotiate it. According to paragraph 99,

“a withdrawal agreement could be post-dated—the UK would continue to be an EU Member State until the date specified”.

Alternatively, we could have a date that was further away than the date of leaving. In other words, we could embed the transition by using Article 50. Can the Minister tell us, in winding up, whether the Government will seek, if we come up against a stop-the-clocks scenario, to use that method to extend the period whereby we might get a deal?

EU Exit Negotiations

Lord Butler of Brockwell Excerpts

Monday 13th November 2017 Lords Chamber

[Lord Callanan]

On the issue of the ECJ, I do not want to go any further than the Statement. We will end the direct application of the European Court of Justice in the UK. That is entirely right—we would not expect a foreign court in any other country or organisation to have effect on UK citizens or the UK judicial process. We expect the debate and vote on the withdrawal Motion to take place before the withdrawal Bill—but of course we cannot have a withdrawal Bill until we have an agreement to withdraw from.

[Lord Butler of Brockwell (CB)]

My Lords, I agree that the offer made by the Prime Minister in her Florence speech on the financial settlement was generous. Will the Minister confirm that any such settlement will be paid over a number of years, not as a capital sum, and must be contingent on satisfactory progress on other aspects of our future relationship?

[Lord Callanan]

The noble Lord makes a very good point from the benefit of his experience. These are matters that will be determined during the ongoing negotiation.

European Union (Notification of Withdrawal) Bill

Lord Butler of Brockwell Excerpts

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

[Lord Butler of Brockwell (CB)]

My Lords, like previous speakers, I believe that the people’s decision in the EU referendum requires the Government to trigger Article 50. The Government should get this Bill and get ahead with their negotiations as soon as possible.

With regard to those negotiations, we must accept the logic of the Prime Minister’s Lancaster House speech. To regain control over immigration, the EU rules require the UK to leave the single market. If the UK is to make independent trade deals with third countries, we must leave at least parts of the customs union.

On the other side of the account, as the noble Lords, Lord Tugendhat and Lord Darling, said, the UK has much to offer our EU neighbours in terms of access to our markets, our financial services, our security co-operation, our universities and research establishments —and much else. Correspondingly, we have much to gain from our European partners.

Thus far, I go along with the Government. Like the noble Lords, Lord Tugendhat and Lord Darling, I believe that there is a deal to be done in rational negotiations. Press reports today suggest that Germany and some other of our European neighbours are prepared to take such an approach. I hope that those reports are right. But we cannot be sure that the negotiations will be rational. We have to allow for the possibility that, as the noble Lords, Lord Lawson and Lord Birt, said forcefully yesterday, such an agreement may not be available. We may ask our partners for things that they may feel unable to give; and they may ask of us things that we are unwilling to give, such as continuing large subventions to the EU budget.

Is the outcome of last June’s referendum to be interpreted as meaning that a majority of the United Kingdom want to leave the EU whatever the terms? The Government clearly think so. But on a matter of this importance have not the Government a duty to be sure before our departure becomes final? One has to ask why those who base their arguments for Brexit on the will of the people are now opposed to consulting the people on the outcome of the negotiations. One has to suspect that they fear that they will get a different answer, but, if so, we ought to know. I must say that I was surprised by the closing part of the speech of the noble Lord, Lord Lamont, when he said that establishing the up-to-date view of the British electorate would be undemocratic.

I have a question for the Minister—there have not been many speeches that I have heard that have left questions for the noble Lord who is answering the debate tonight. Do the Government regard the views of the British people on the outcome of the negotiations as irrelevant to our departure?

I said previously in your Lordships’ House that I will support an amendment requiring the Government to consult the people again before our departure becomes final. Having said that I would support such an amendment, I will—but, in truth, I doubt whether such an amendment to the Bill is of much significance. As the noble Lord, Lord Mandelson, said, much will happen over the next two years. If there is no agreement, or if the terms of any agreement are unsatisfactory, and if there is evidence that public opinion may have changed, I expect that the Labour Party will not be as co-operative as it is now, rightly, over the passage of the Bill. We know the position of the Liberal Democrats and of the Scottish Nationalists.

The Government may well be defeated in the House of Commons, as well as in this House, at the end of the negotiations. A matter of this importance is certainly an issue of confidence. If I am right that there is the prospect of that happening, by one route or another, the Government or a new one will have to return to seeking the views of the British people—and so they should.