Brexit: People’s Vote

Debate between Lord Campbell of Pittenweem and Lord Dykes

Thursday 25th October 2018 Lords Chamber

[Lord Dykes (CB)]

I thank the Liberal Democrat group for being unequivocally in favour of our continuing membership of the EU. As the first referendum two years ago was an advisory and quite legitimate giving of an opinion, does the noble Lord agree that it is important that the people should be entitled to a second consideration of this important matter now, after the incredibly bewildering and complex negotiations?

[Lord Campbell of Pittenweem]

I am glad that I have so quickly persuaded the noble Lord.

The second matter that I wish to draw to the House’s attention is the unremitting and, it must be admitted, highly successful campaign against the Liberal Democrats conducted by the Conservatives in the 2015 general election. However, the consequence of that was to remove the need for a further coalition, which could have been David Cameron’s defence—as it was between 2010 and 2015—against Conservative MPs hell-bent on withdrawal. The consequence of that is that the credibility of the Government’s position has been substantially undermined, as indeed it was by the assumption on the part of Mrs May that a general election would produce an increased government majority and strengthen her hand. All those weaken the negotiating strength of the Government, which has been further undermined by the civil war in the Conservative Party, where there is still open and reckless ambition and unrepentant revolt—notwithstanding what may be thought to be the temporary ceasefire of last night.

The Prime Minister—who would have believed it?—has found it embarrassingly necessary to use a threat to the European Union that if she were to be replaced because of a failure to reach an accommodation with the 27 leaders, then negotiations with a successor would be even more difficult. Baroness Thatcher would not have approved.

We do not know what the final package put before Parliament will be, but the chances of it being approved by the Commons melt by the hour, as bitterness and abuse replace loyalty and respect. Who will bet the farm that the Government will get any proposal brought back by the Prime Minister through the House of Commons?

What are those who oppose a second vote afraid of? If they are as confident as some of those quotations have suggested, what is there to be lost, so far as they are concerned? I understand those who take the view that in a parliamentary democracy we should not rely on a referendum, but that door was opened when the decision was taken to hold a referendum as to whether we should stay or leave. Some claim that it would be undemocratic to allow such a vote—that it is a novel and dangerous principle to give the people of the United Kingdom the chance to pass judgment on proposals which are a world away from what they were promised, and which will have an impact for decades to come.

Parliament, on the other hand, is sovereign; it can change its mind, and it frequently does. Sometimes we repeal legislation which has been passed earlier in the same Session. It is argued that the people of the United Kingdom cannot be given the same opportunity: that, once cast, the vote to leave must be implemented, whatever the political, economic or social consequences; that the resulting, inevitable uncertainties must be accepted, whatever the financial cost; and perhaps—I speak as someone who comes from north of the border—that the risk of the break-up of the United Kingdom must be accepted, along with the risk of the destabilisation of the island of Ireland.

In the course of the referendum campaign, no one told the country that a decision to leave would result in the depreciation of the pound, an increase in inflation and a rise in the cost of living. No one told the country that we might have to stockpile medicine and food. No one told the country that the car industry would be beset by uncertainty. Where now is the letter of comfort given to Nissan, to which such great importance was attached? It has since been regarded as insufficient, so far as Nissan is concerned.

The people were assured that the vote to leave would be followed by a trouble-free and successful exit, and that the economy would prosper. What else was meant by the three unwise men to whom I have already referred? More than that, the people were given to believe that their Government would conduct the necessary negotiations in an effective and unified way. In all of these expectations, they have been failed. They have been failed by incoherence and incompetence. The people of Britain have a right to be allowed to pass judgment on any deal forged in such circumstances. They should be given that opportunity. I beg to move.

European Union (Withdrawal) Bill

Debate between Lord Campbell of Pittenweem and Lord Dykes

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, the noble Lord, Lord Wilson, said that it was 50 years since he had practised as a lawyer. Perhaps I may observe to him, once a lawyer, always a lawyer—and he certainly demonstrated that in the way in which he introduced this amendment. The effect of the statute before us is to provide an unfettered discretion, and we should be extremely slow to provide unfettered discretions to anyone. You would not give an unfettered discretion to the captain of a golf club. The idea that we will give 109 Ministers an unfettered discretion seems to me to fly in the face of all constitutional propriety.

It is not even the Secretary of State who is asked to exercise these powers. That frequently appears in statutes where a power is afforded. In this case it is any Minister of the Crown—and, added to that, public authorities, as widely defined. It is difficult to imagine public authorities understanding the whole question of discretion, as we see time and again in the courts when judicial review is successfully taken against local authorities, for example. As the noble Viscount, Lord Hailsham, pointed out a moment or two ago, if you have the power to make by regulation such provision as you consider appropriate, the prospects of judicial review are nil. There will be no review because, in any circumstance where a subjective test has been imposed or offered to the Minister, there can be no challenge. Necessity, on the other hand, is capable of challenge and leaves open the whole question of judicial review where the test of reasonableness arises in the course of the action—in this case of a Minister, or indeed of any of these public authorities.

When the bus with “£350 million a week” was going around the country, and when those who emerged from it, including the blonde bus conductor, told people, “We want to take power back from the European Union and Brussels”, no one said, “We want to take power back so we can give it to 109 Ministers or public authorities”. If they had said that, I rather fancy that the bus would not have received the generous welcome that it did on many occasions.

[Lord Dykes (CB)]

My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, all saying similar things, and I entirely concur with what was said. Therefore, I can be very brief. First, I thank my noble friend Lord Wilson for his remarks. I apologise to him for missing the first minute and a half of his speech because I naively thought that two government Statements would last a bit longer than they did; they were very brief indeed. I surmise that my noble friend referred to my noble friend Lord Lisvane, a very good friend to many of us. I assume he is on onerous public duties in Herefordshire. Sadly, the noble Lord, Lord Tyler, cannot be present due to illness. Therefore, two sponsors of the amendment are sadly unable to be here but that in no way weakens the strength of this message for the Government. I hope the Ministers on the Front Bench will listen very carefully to these words.

It is also worth noting that, apart from a later big grouping, this group contains the largest number of amendments of any group since the Committee proceedings began. This is the subject that most exercises the Members of this Committee and, I think too, quite a number of MPs although they are sometimes under much greater pressure for obvious reasons not to say too much about it.

I was very struck by what the noble Lord, Lord Sharkey, said and by what he said representing the noble Lord, Lord Tyler. Since I am an amateur and not an expert on these matters, I was impressed by the comments of the Bar Council on its worries about these matters. In paragraph 60 of its general statement, it said:

“Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) includes an open-ended power to make ‘any provision that could be made by Act of Parliament’. There are comparable Henry VIII powers in Clauses 8(2) (in respect of regulations to ‘prevent or remedy’ any breach, arising from Brexit, of the UK’s international obligations”.


It went on to say in paragraph 61:

“We consider that these provisions (and in particular Clause 7) continue to raise serious concerns both from the perspective of the rule of law and the sovereignty of Parliament and in respect of legal certainty”,


which we sometimes forget. By the way, as the sunset clause possibilities in Clause 8 have been mentioned by at least one speaker, in paragraph 67, the Bar Council adds:

“While we recognise that the Henry VIII power in all three clauses (7-9) is subject to sunset provisions, we do not think that this is sufficient to address the above concerns. As noted in the introduction to this paper, the operation of the amending powers and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period or under the Withdrawal Agreement”.


I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment. I anticipate a major expression of unease, to put it mildly, when Report stage comes along. I hope and pray that will be so, and we look forward to the Minister speaking in the framework of that need to assuage our anxiety when he comes to reply.