Outcome of the European Union Referendum

Lord Carlile of Berriew Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Hooper. On matters European, she brings to this House both knowledge and wisdom. She may also still be the most popular Conservative in Liverpool—admittedly a relatively small cohort but still a great distinction.

I wish to headline my comments with a question. Where does Parliament stand in all this? I propose to address some of the comments raised by, for example, the noble Lord, Lord Kerr, the noble and learned Lord, Lord Brown, and others earlier in the debate, but I want to focus on the process that follows the referendum, especially the role of both Houses of Parliament. In that context, we in this House are entitled to assume that Her Majesty’s Government have assessed the legal and constitutional consequences, and I believe that in the closing of this debate we are entitled to hear what advice the Government have been given about those consequences. I will not hold my breath but it will be astounding if they have not been analysed properly.

What concerns me, among other things, is the relationship between democracy and democracy. We do not legislate by referendum but it is part of our democracy. I suggest to your Lordships that, in adopting one expression of our democracy—the occasional referendum—we should not supplant another, permanent element, which is the deliberative democracy we have in Parliament.

I wanted, and voted, to remain but I recognise that we must respect the result of the referendum. However, that does not mean that we slavishly leave the European Union whatever the terms may be. I suggest to your Lordships that the clear duty of the Government and of both Houses is to attempt in good faith to give effect to the will of the majority expressed in the referendum. However, I also suggest that it is absolutely clear, as a matter of law, that Parliament would not be bound to give effect to the referendum if the only terms on which the UK could leave the European Union were shown to be seriously damaging to the national interest. Indeed, I cannot believe that the leave campaign wanted to damage the national interest.

To put it another way, I invite the noble Baroness, in responding to this debate, to confirm the following: that, despite the referendum result, if empirical analysis of negotiations shows that the disadvantages faced by the United Kingdom on leaving the European Union are disproportionately damaging to the national interest compared with the advantages of remaining, Parliament will properly have the right to show its will accordingly. I believe that the answer to that must be, “Yes. Parliament would have that right”, but we are entitled to know the Government’s view.

[Lord Lawson of Blaby]

Will the noble Lord—

[Lord Carlile of Berriew]

Perhaps I may be forgiven. I turn now to some narrower legal issues. I ask the noble Baroness, in responding to the debate, to explain the effect, if any, of Section 2(2) of the European Communities Act 1972. As I understand that section, if the trigger to leave the European Union, as seems to be agreed, is the Article 50 process, that process falls squarely within Section 2, and I shall explain in a sentence what that means. To pull the trigger of Article 50, Section 2(2) requires the Government, at the very least, to obtain the consent of both Houses of Parliament to a requisite statutory instrument. If that is so, does not Parliament have a legitimate expectation that considerable detail of the proposed terms of exit from the European Union will be disclosed as part of the relevant statutory instrument, or at least in the Explanatory Notes, and that it will therefore be a transparent part of the proposed Article 50 process?

Do the Minister and the Government agree that the ultimate decision to leave after the Article 50 process has been completed is one for which legislation is required and for which, therefore, the views of both Houses of Parliament are necessary? At the very least, even if legislation is not required, can the noble Baroness agree in due course that for so momentous a decision as leaving the European Union, which I suggest—I hope without extravagance—is comparable to a decision to be involved in a war in some part of the world, the Government should accept that a fully informed decision must be required of Parliament, or at least of the House of Commons, the elected House? In sum, I am saying that we need to know the legal position. This House and the other place need to understand the legal rules behind this process. An attempt was made to explain them in a paper published a couple of months ago but a host of questions have arisen ever since.

Finally, I ask the Minister to explain how this House and the other place are to be informed on a real-time basis of the work of the team led by Oliver Letwin MP, as announced by the Prime Minister. We have an excellent House of Lords committee, chaired by the noble Lord, Lord Boswell of Aynho, who spoke earlier, but that is surely only part of the picture. Would it not be sensible for a Joint Select Committee of both Houses to be established for the specific purpose of providing scrutiny of this most important process?

A complex historic process has been commenced by what I regard as a simplistic binary question. Many untruths and half-truths were told during the referendum campaign, possibly by both sides. Now, we need confirmation that, in contrast, the parliamentary part of the process will be legal, decent, honest and, if truthful is too much to ask for, at least reasonably well informed. Pericles, one of the great originators of democracy, said:

“Although only a few may originate a policy, we are all able to judge it”.

I suggest to your Lordships that Parliament should be allowed to judge this issue in an informed way—not one that is slavish to the referendum—before a final conclusion is reached.