Article 50 (Constitution Committee Report)

Lord Davies of Stamford Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, this has been quite an unusual debate; almost every contribution has been very effective and penetrating, and two or three have been quite memorable. I am grateful to be able to speak in the gap. I do not need more than a few minutes. I just want to ask the Government three simple questions that I think are in the mind of every member of the public who takes an interest in this matter.

The first has already been asked by two of the Minister’s noble friends, the noble Lords, Lord Higgins and Lord Balfe, so I hope if I ask it again towards the end of the proceedings there is a chance it might get an answer: why have the Government been so desperately anxious to cut Parliament out of the loop over Article 50? No one has given an explanation of that, but the proceeding is quite extraordinary and the public are entitled to know why. I hope we will not be told that it is in order to save time, because it really would be the most terrible insult to Parliament to be told that to consult it was a waste of time. Anyway, it would be an untrue explanation because, by appealing the decision of the High Court, the Government have lost more time—at least six or seven weeks—precisely in order to be able to prevent Parliament from getting in on the action. In other words, it is quite clear that time is not the consideration in the Government’s mind. So there is a mystery here, and the mystification of the public on this point ought to be brought to an end. We ought to hear from the Minister tonight exactly what the real motives of the Government have been in this extraordinary matter.

Secondly, why have the Government not clearly and unambiguously dissociated themselves from the shameful attacks on the judges that were made after the High Court’s judgment—attacks that included the phrase “Enemies of the people”, a phrase popular with the most murderous and terrible fascist and communist regimes of the 20th century? That was a quite extraordinary piece of hysterical demagogy, and it is amazing that someone should resort to such terms in any civilised democracy. Yet the best that the Government could do was come out with a statement— drafted, presumably, by some spin doctor at No. 10, because identical statements were produced by the Lord Chancellor and the Prime Minister—that started with just one sentence, a perfunctory acknowledgement of the principle of the independence of the judiciary. That was coupled with another single sentence talking about the freedom of the press—quite gratuitously, because the freedom of the press had never been attacked or raised in that whole context. The effect of the combination of those two sentences, drafted and conveyed in that way, was actually to put forward the idea that maybe the Government had some secret sympathy with what the press had been saying about the judges, which of course would be utterly deplorable. The Minister has an opportunity tonight to put that terrible impression to rest and to dissociate himself unambiguously and clearly from those mischievous, appalling and unforgivable words.

My third question is a fundamental one, to which the public have a right to a clear answer from the Government: what is the Government’s concept of parliamentary sovereignty? If I ask the Government whether they believe in parliamentary sovereignty, I know they will say yes, but what do they mean by it? Specifically, do they accept the definition in the High Court’s judgment, which I think is the most lucid and authoritative definition that I have ever seen? It is not original because, of course, the concept is not original—it has been going on for a long time; I remember reading the words of Sir Edward Coke on the subject as a schoolboy and trying to memorise them for examination purposes—but it is very clearly set out in the judgment, which is likely to become a locus classicus on the subject in future. Do the Government accept that? Do they accept what followed from that, as explicitly stated by the judges, that therefore the referendum, since Parliament did not explicitly decide otherwise, was in fact advisory? I ask the question particularly because, on two or three occasions, I have heard government Ministers from the Front Bench refer to an “instruction” given to Parliament by the electorate. The Minister will accept that instruction is quite incompatible with sovereignty. By definition, you cannot be sovereign and subject to instructions from outside. That is a matter of the logical use of language. Can we hear tonight from the Government what their concept of parliamentary sovereignty is and whether they accept the definition in the High Court’s judgment?

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[The Parliamentary Under-Secretary of State, Department for Exiting the European Union (Lord Bridges of Headley) (Con)]

My Lords, I am delighted to be likened to a brick wall. When my wife says that talking to me is like talking to a brick wall I shall remind her that it is a compliment.

I thank the members of the Constitution Committee and the European Select Committee not just for securing this debate but for their extremely interesting and useful reports. I also thank all noble Lords who contributed to this very good debate.

From the outset I want to stress the importance that I personally attach not just to the role of Parliament but to the Select Committees in the process before us. I hope to continue to draw on the invaluable expertise and experience that I have heard, and been able to use, in recent months. I intend to continue to have as many meetings as I can with members of those committees. I am grateful to the Constitution Committee for agreeing to extend the deadline for the Government’s response to its report given the legal sensitivities that currently exist. I assure noble Lords that the Government will respond formally to the EU Select Committee’s report in line with the usual timeframe.

However, clearly this debate gives me an opportunity to set out the Government’s thinking on a number of the issues raised this afternoon, and I shall begin by outlining the guiding principles that underpin our approach. The first principle is one of which noble Lords will be well aware—that we must respect the view of the electorate expressed on 23 June to leave the European Union. The Government, as I have said before at this Dispatch Box, are determined to deliver on what the people of the United Kingdom voted for. There must be no attempts to rejoin the EU through the back door and no second referendum. On that point I welcome the comments made previously by the shadow Leader of the House, the noble Baroness, Lady Smith, that the Opposition will not seek to block Brexit. I hope that that approach will be followed by all sides of the House and, meanwhile, that the scrutiny of the process of the legislation will be constructive, as I am sure it will be, with this House exercising its usual discipline and restraint.

The second principle is that we respect and value the role of Parliament, and the third principle is to negotiate in the national interest. I bracket those two principles together, as clearly a balance needs to be struck if we are to respect both those principles. We do indeed want to be as open and transparent as we can with Parliament. However, it is also crucial, as a number of your Lordships have said this afternoon and previously, that the Government negotiate from the strongest position possible. Revealing too much information before triggering Article 50 will, as a number of your Lordships know, weaken our hand. Indeed, the EU Committee of this House has noted that point. Getting the balance right is clearly a core aspect of the debate today, as my noble friends Lord Boswell and Lord Lang said, and it is something on which we are very focused—a point I will return to.

The final principle governing our approach is to respect the rule of law and abide by due process. That obviously means respecting the ruling of the Supreme Court as regards Article 50, and respecting the independence of the judiciary. In response to the noble Lord, Lord Davies, I thoroughly concur with what my noble and learned friend, Lord Keen, said a couple of weeks ago at this Dispatch Box:

“My Lords, we have a judiciary of the highest calibre”.

Sadly, however—and I say this as a journalist myself—that cannot always be said of the media and the press. As my noble and learned friend also said:

“Sensationalist and ill-informed attacks can undermine public confidence in the judiciary, but our public can have every confidence in our judiciary, a confidence which I believe must be shared by the Executive”.—[Official Report, 8/11/16; col. 1029.]

[Lord Davies of Stamford]

I am grateful for that, but it does not really answer the question. The question is not whether the Government are in favour of the independence of the judiciary but whether they dissociate themselves from the appalling remarks made in the press about the judgment in the High Court.

[Lord Bridges of Headley]

I think I did answer that point. I am sorry to say that some comments in the media can at times be sensationalist, but at the same time, we obviously want to respect the freedom of the press. Above all, in this case, I concur with the thrust of the noble Lord’s point: we absolutely must respect the rulings of the Supreme Court in this case and the independence of the judiciary. Respecting the rule of law and abiding by due process also means respecting our obligations and responsibilities as a member of the EU up until the day we leave, and respecting parliamentary precedent and procedure as regards the legislation that we shall need to pass as we leave the European Union.

With those principles in mind, I shall approach the issues we are debating under two broad headings: first, the process we are following, up to and including the triggering of Article 50; and secondly, the process that will follow. Let me first, very briefly, chart the democratic process that has been followed so far to leave the European Union, which my noble friend Lord Hunt referred to, in an attempt to bring out the interaction between representative and parliamentary democracy on the one hand, and direct democracy on the other.

In 2013, as your Lordships will remember, the then Prime Minister announced that if a Conservative majority Government were to be elected, they would deliver an in/out referendum—a policy which was in the Conservative Party manifesto. The people voted for that Government, and MPs then voted—by a majority of six to one—to hold a referendum. In the referendum campaign, the Government made it clear that they would respect and implement what the people decide. The referendum itself delivered a bigger popular vote for Brexit than that won by any UK Government in history. The people have therefore voted twice: once for a Government to give them a referendum and then in the referendum itself. Parliament voted to give them that referendum without any conditions attached as to the result.

I heard what my noble friend Lord Higgins and the noble Earl, Lord Sandwich, said about their being non-believers in referendums in our parliamentary democracy, but that argument was meant for when Parliament and this House were debating the referendum itself. I hear what has been said but think that it is now an argument for another day.

Regarding the role of referendums in our parliamentary democracy, I think that my noble friend Lord Lang quoted that noted jurist and constitutionalist, AV Dicey. I too would like to quote AV Dicey. Back in 1911, he wrote that the referendum is the only institution that could,

“give formal acknowledgement of the doctrine which lies at the basis of English democracy—that a law depends at bottom for its enactment on the consent of the nation as represented by its electors”.

The referendum, he wrote,

“is an emphatic assertion of the principle that nation stands above parties”.

I turn now to the actual process of triggering Article 50. It is the rule of law—the principle that I referred to earlier—that has guided the Government’s approach. I am certainly in agreement with paragraph 9 of the Constitution Committee’s report: Article 50 is the only lawful route through which the United Kingdom can leave the EU under the treaties. As a matter of policy, the Government’s view is that, once given, our notification will not be withdrawn. We are committed to leaving in accordance with any legal and constitutional requirements that may apply. The Government have outlined their case and what we believe is the right and proper process to leave the EU under domestic law following established precedent with regard to international affairs.

As your Lordships will know, we have argued that triggering Article 50 is a prerogative power and one that can be exercised by the Government. It is constitutionally proper to give effect to the referendum in this way. As such, we disagree with the judgment of the High Court in England and Wales and are appealing that decision. The Government therefore await the final decision by the Supreme Court and, as I have said, we will abide by its decision. Let me repeat once again: the Government fully respect the independent role of the judiciary in deciding those cases.

I hope your Lordships will understand if I refrain from entering any further into the specifics of the ongoing legal challenge. There will be a hearing in the Supreme Court beginning on 5 December. It is expected to last four days, and a judgment will be reached in due course after that. But whatever happens in the Supreme Court, there will be further parliamentary scrutiny before Article 50 is triggered. We have been making time available for a series of Brexit-themed debates in the other place and in this place which will allow Parliament to make its views clear on a variety of topics. We welcome this House’s likewise debating this but I also note—how could I not?—the recommendations in the report and the numerous contributions made from all sides of the House today regarding the Government’s approach to the negotiations and the scrutiny of our position before those negotiations —or stage 1, as the noble Earl, Lord Sandwich, called it—and furthermore, as he rightly said, the application of the lessons learned from the debates held in this place and the other place and the extensive consultation that the Government are having with business. There were a number of powerful contributions on that point, especially from the noble Lords, Lord Kerr, Lord Teverson, Lord Maclennan and Lord Hannay, and the noble Baroness, Lady Suttie, to name just a few. Naturally, when we trigger Article 50, we want people to be aware of our overall approach, not least to give as much certainty and clarity as we can, and to build a national consensus.

I am sorry to disappoint the noble Lord, Lord Kerr —one of his balls is disappearing into a hedge. I am sorry that all I can say at this stage is that we have noted the calls for this and we will consider the best approach, taking into account what has been said in today’s debate and in the Select Committee’s report. The issues around Brexit, as I have said at this Dispatch Box before, are indeed highly complex, as the noble Baroness, Lady Hayter, said. They deserve very careful consideration, including as the Government continue to consider the customs union.

One of the issues raised in a number of noble Lords’ speeches is, for example, a transitional arrangement. I and my ministerial colleagues are fully aware of this issue in discussions that we have had with representatives of the financial services sector and of other industries right across the board. We have said that we wish the process of Brexit to be as orderly and as smooth as possible—a point which my right honourable friend the Prime Minister repeated at the CBI yesterday. We very much hope that our European partners will also see such an approach as in their interest too, as trade is obviously two-way. I assure your Lordships that we are looking at this issue among all the others that have been raised.

I would also like to address the point that a number of your Lordships made, including my noble friend Lord MacGregor—the position of EU nationals in the UK and UK nationals there. I would draw his and your Lordships’ attention to what the Prime Minister said at the CBI yesterday—that she wants an early agreement in the status of UK nationals in Europe and EU nationals here.

As regards the process of drawing up our negotiating position—