European Union (Withdrawal) (No. 6) Bill

Debate between Lord Butler of Brockwell and Lord Howard of Lympne

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Howard of Lympne]

I shall not give way on this any more. I want to move on to consider the Bill before your Lordships’ House today, on which we ought to focus our attention.

The noble Lord, Lord Hennessy, whom we all admire and for whom we have so much affection, has recently propounded a novel theory of government and has given it a name—he calls it the government of good chaps. He is in a better position to explain his theory than I am but, as I understand it, one of the elements is that the constituent parts of government and our unwritten constitution should behave within their respective roles as understood by convention and tradition under those unwritten rules. I contend that the legislation before the House is a fundamental breach of the good chap theory of government.

I shall endeavour to explain why I have reached that conclusion. Our unwritten constitution is based on the separation of powers—in particular, between the Executive and the legislature. It is the role of the Executive to govern; it is the role of the legislature to hold the Executive to account—to hold to account but not itself to govern. This Bill represents an attempt by the legislature to assume the mantle of government. That is why it is wrong and illegitimate, constitutes a fundamental breach of the good chap theory of government and is in breach of the conventions of our unwritten constitution. These observations would apply regardless of the underlying reason which gives rise to the Bill; and the fact that the underlying reason underpinning the Bill relates to Brexit makes it even worse.

[Lord Butler of Brockwell (CB)]

If the only role of Parliament is to hold the Government to account, how does the noble Lord explain the fact that we pass laws which bind the Government? We often amend Bills that the Government introduce in a way that they do not want. We do more than hold the Government to account; we set the way in which the law of this country and the Government act.

[Lord Howard of Lympne]

Parliament passes laws initiated by government, and when Parliament passes, and indeed amends, those laws, it does not enter into the detailed prescription of government contained in this Bill. That is why this Bill and its predecessor, introduced earlier this year, represent so fundamental a breach of precedent. They were facilitated only by the fact that the Speaker in the other place decided to dispense with precedent and, as far as we are aware, to dispense with the advice he was given and to allow the Opposition to take charge of the business of the House.

I want to take the House back to the Second Reading of the referendum Bill in the other place—the Bill that provided for the referendum. That debate was introduced by the then Foreign Secretary, one Philip Hammond. He said that,

“whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber”.

I repeat,

“or parliamentarians in this Chamber”.

He said that the decision should be,

“for the common sense of the British people”,

and that this Bill,

“delivers the simple in/out referendum that we promised”.—[Official Report, Commons, 9/6/15; col. 1056.]

The Bill which provided for that referendum was of course passed by a very large majority, but the difficulty that we have faced ever since is that the British people delivered a result that Parliament neither expected nor wanted. I am happy to give way to the noble Lord.

European Union (Withdrawal) (No. 5) Bill

Debate between Lord Butler of Brockwell and Lord Howard of Lympne

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Howard of Lympne]

I wonder if the noble Lord might add this to the conditions in which this Bill would have been unnecessary: if Parliament had been prepared to respect the result of the referendum.

[Lord Butler of Brockwell]

My Lords, I understand the misgivings that many in this House have about this Bill, but I have to say to the noble Baroness that her amendment would not stop the Bill becoming an Act. It is going to become an Act, and that is the mischief, so she cannot stop through her amendment the mischief that she wishes to stop. As the noble Lord, Lord Pannick, said, the Bill ceases to have an effect, so she need not worry about that either.

There is another reason why we should not pass this amendment: with the amendments we have passed so far, supported by the Government, they will be supported in the House of Commons, and so we will not have ping-pong. If we were to pass the noble Baroness’s amendment and the Government resisted it in the House of Commons, the Bill would have to come back here and there would be further delay. Therefore, I urge her not to press her amendment, because it is unnecessary and it will cause unnecessary prolongation of the procedures.