Article 50

Lord Faulks Excerpts

Monday 11th July 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I will now repeat a Statement.

“Mr Speaker, the question of how to involve parliamentary discussion around triggering Article 50 has two distinct facets, one legal and the other democratic.

To take the legal considerations first, I am sure everyone will be aware of the debate around whether invoking Article 50 can be done through the royal prerogative, which would not legally require parliamentary approval, or would require an Act of Parliament because it leads, ultimately, to repeal of the European Communities Act 1972.

I will leave the lawyers to their—doubtless—very enjoyable and highly paid disputes, and apart from observing that there are court cases already planned or under way on this issue, so the judge may reach a different view, would simply remark that government lawyers believe it is a royal prerogative issue.

But I hope everyone here will agree that democratic principles should rightly trump legal formalities. The Prime Minister has already said that Parliament will have a role, and it is clearly right that a decision as momentous as this one must be fully debated and discussed in Parliament.

Clearly, the precise format and timing of those debates and discussions will need to be agreed through the normal parliamentary channels. As everyone will understand, I cannot offer any more details today because those discussions have not happened yet. But I will venture a modest prediction in that I strongly doubt they will be confined to a single debate or a single occasion.

There will be many important issues about the timing and the substance of different facets of the negotiations which the Government, the Opposition, the Backbench Business Committee and, I dare say, even you Mr Speaker will feel are important to discussions. But for the details of which topics, on what dates, and the specific wording of the Motions, we shall have to wait and see”.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the Minister for repeating that Answer to an Urgent Question. Last week, we had two days of debate and a QSD on the referendum outcome in which we sought to better understand what will happen next. The result of the referendum is of course clear and must be respected, but as we heard in the other place, it is about not if but how the will of the people is delivered. Whatever version of Brexit we eventually end up with, surely Parliament must be totally engaged in the determination.

Last week, the Minister said that it is for the next Prime Minister to decide when to trigger Article 50 and start the formal and legal process of leaving the EU. We now know who, but when will we know how? The question for all noble Lords in this House is about the process of parliamentary engagement before the triggering of Article 50. What is the Minister’s estimate for meeting the commitment to consult the devolved powers? It will be a lengthy consultation process, bearing in mind the risks, but will it also involve the wider community, including employers and trade unions? If the principle is that Parliament will be engaged, will the Minister please give us more details about what that precisely means?

[Lord Faulks]

The noble Lord asks a number of questions, including some that were posed, as he quite rightly said, to my noble friend Lady Anelay last week during the debate. I can of course advance the position somewhat from the answer that she gave last week, in that we know, as the noble Lord said, who the next Prime Minister is—and I understand that she will become the Prime Minister on Wednesday evening. There is at least some progress there, which I am sure will provide some confidence that the process will be decided rather sooner than might have been the position had there been a contested election for the Conservative leadership.

As to his question in respect of the devolved nations, I know that there have already been preliminary discussions with the various parts of the United Kingdom and their representative Assemblies and Parliament. That will continue, and he is quite right that Brexit, however it finally comes into being, should involve all of the United Kingdom and as many parts—and representative parts of the United Kingdom—as possible.

As to the question of Parliament’s involvement, I fear I can go no further than my noble friend did. It is the Government’s view—as I indicated in the Statement—that the prerogative power does not require parliamentary involvement, but the current Prime Minister made it clear that Parliament will be involved. How and when Parliament will be involved will be a question for the new Prime Minister when she has considered the best way forward.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his responses. He seemed to make rather a joke of “enjoyable and highly paid” disputes among the lawyers, but surely it is much bigger than that. For a referendum which was fought largely on the issue of parliamentary sovereignty, and on such a major issue as the terms on which this country is supposed to leave the EU, surely it is inconceivable that a decision to trigger Article 50 should not be taken on the basis of a parliamentary decision. After all, Article 50 says that it is up to British constitutional requirements. So this is not about legal formalities; this is fundamentally about democratic principles. We need clarity in a time of huge turbulence. We need to know the evidential basis on which the negotiations will be conducted. We need to know the timing, before and after negotiations, for triggering Article 50. This is about the national interest, not about the convenience of the Conservative Party. I think that we deserve greater respect for Parliament on this decision.

[Lord Faulks]

There is no lack of respect for Parliament; quite the contrary. As to the comment that I appeared to make a joke, the noble Baroness will appreciate that I was simply reading out the Statement that was in the House of Commons. If noble Lords found it amusing, that was a matter for them, not any intention on my part. As to the question of sovereignty, there is a distinction drawn by the noble Lord, Lord Norton, as the noble Baroness may remember, between parliamentary sovereignty and political sovereignty in the Diceyean sense. The Government took the view that it is plainly desirable that Parliament should be involved. Whether there is a strict requirement in law may be a matter that courts will decide in due course.

[Lord Lawson of Blaby (Con)]

My Lords, I am sure we all wish the present Prime Minister well in the next phase of his interesting career, whatever he may choose that to be. Does my noble friend recall that the present Prime Minister made it absolutely clear that, in his view, Article 50 should be triggered without delay following the referendum result? Surely that is sensible given that delay, and the consequent uncertainty, can only be bad for British business and the British economy. Does he not agree that the same applies to the negotiations themselves? They should not take too long, and they can be speeded up by avoiding the nonsense of seeking some special trade agreement with the European Union, which it is clearly not prepared to give—for reasons I fully understand—although it might string us along. Finally, will he not also agree that the same thing applies to the rest of the paraphernalia of the negotiations, which I have not got time to go into now? We need to concentrate on how we are going to conduct ourselves after the Brexit. That is what is most important.

[Lord Faulks]

As for the question of speed, of course, once we trigger the Article 50 process, there is a period of two years which follows—

[Lord Lawson of Blaby]

Not necessarily; up to two years.

[Lord Faulks]

Up to two years is the maximum, as my noble friend quite rightly says. It will be a matter for those conducting the negotiation as to the appropriate speed, although speed should not be the dominant factor. What should be the dominant factor is the best deal that we can obtain for this country. Simply trying to accelerate the process might, depending on how the negotiations continue, be the enemy of that result. We should leave it to the new Prime Minister and those negotiating with her to obtain the best deal for the United Kingdom.

[Lord Morris of Aberavon (Lab)]

My Lords, in principle, I welcome very much the Minister’s statement that political realities trump whatever other legalities. There is an argument here, and I advanced a certain view on the prerogative in last week’s debate on the subject, but I am glad that political realities are now paramount, as they are in the convention of going to war, which was advanced by the late Lord Mayhew and myself as former Attorney-Generals. Indeed, the convention has now been established, in respect of Iraq and Syria, so that matters of such importance can no longer be invoked for the royal prerogative and that the consent of Parliament is required.

[Lord Faulks]

I noted that the noble and learned Lord made that point during the debate on the EU referendum last week, and of course he is right. I hope that I have reflected what this House and indeed the House of Commons would expect by way of parliamentary involvement. Clearly this House, as well as the House of Commons, has much to offer.

[Lord Elystan-Morgan (CB)]

My Lords, will the Minister be so kind as to confirm that, until such time as Article 50 is triggered, nothing of any legal consequence occurs at all, and it does not lie in the gift of the other 27 members of the European Union to take any action at all to seek to force the British Government into that position?

[Lord Faulks]

The noble Lord is perfectly correct, as a matter of law. Of course, there will be a question of what is expedient, in terms of the timetable, and whether pressure would be put on the Government. But he is absolutely right on the legal position.

[Lord Carlile of Berriew (LD)]

I thank the noble Lord for being the third Minister now to say very clearly that Parliament will have a role to play in the Article 50 process. Can he confirm that the role that Parliament plays will be a matter for discussion between the usual channels and that we will be able to have a debate on the real merits of what is proposed so that a proper democratic judgment can be made by Parliament on these matters?

[Lord Faulks]

I cannot, of course, anticipate precisely what the new Prime Minister will decide; if and when she decides on a particular course, I am sure that the way in which parliamentary involvement takes place will include the usual channels.