European Union (Notification of Withdrawal) Bill

Lord Faulks Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Faulks (Con)]

My Lords, I should begin by telling the House that I voted to remain in the European Union. I am sure that, as my noble friend Lord Lang said, the House is not remotely interested in my reasons, but they were in fact congruent with the reasons that I attempted to advance from the Dispatch Box. Noble Lords will know, if they have had ministerial experience, that that is not always the case. Other noble Lords may have had better or different reasons for voting to remain. But we know neither the reasons for voting to remain nor the reasons why the majority voted to leave the European Union. We can speculate, of course, that it was to do with immigration or sovereignty, or a dislike of the European Court of Justice. But we do not ask voters to give reasons for their votes, whether in council or parliamentary elections or in a referendum. The noble Lord, Lord Mandelson, clearly has greater insight into voters’ motives than I do.

The referendum Act which I had the privilege of assisting through your Lordships’ House does not contain implementation provisions. What did voters or parliamentarians expect to happen, were the British people to vote to leave the EU? If they had read the Government’s publication of February 2016, The Process for Withdrawing from the European Union, they would have realised that the Prime Minister had indicated clearly that the British people, if they voted to leave, would expect the UK Government to notify the European Council straight away, pursuant to Article 50.

During the passage of that European referendum Bill through your Lordships’ House there were debates, often heated, about the virtues or otherwise of membership of the European Union. A great many amendments were put down, but they were concerned with the franchise—what one might call the rules of engagement in relation to the referendum campaign. All the major parties agreed that there should be a referendum. No parliamentarian put down an amendment spelling out what the consequences of an out vote would be. There was, for example, no amendment on thresholds or the sort of Brexit that would follow—let alone anything about a second referendum.

Following the referendum vote, the Government thought that they could rely on the royal prerogative to trigger Article 50 but decided not to do so immediately. As noble Lords know, there followed a legal challenge. Ultimately, the Supreme Court concluded that, notwithstanding a resolution of the House of Commons in favour of triggering Article 50, the notice could follow only actual legislation—although the Supreme Court was at pains not to be specific about the form of legislation. One could say that this short Bill before your Lordships’ House represents minimal compliance with the Supreme Court’s ruling—but in my view it respects the decision of the court. At paragraph 122 of the Supreme Court’s judgment the noble and learned Lord, Lord Neuberger, said, in speaking for the majority:

“There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity”.


Notwithstanding the interesting observations by the noble and learned Lord, Lord Hope, the Bill shows respect for the rule of law and the decision—and, of course, for the independence of the judiciary. After the decision of the Divisional Court there was a lamentable attack on the judges by some of the media. The Government were rather slow to condemn it. I am glad to say that they were much quicker to evince acceptance of the Supreme Court’s judgment.

Why was it important to defend the independence of the judiciary? It was not because of any hypersensitivity on the part of the judges, who are used to robust criticism of their judgments; it is because of the critical importance in the function of the constitution that the Government should show respect for the rule of law. If one needs any illustration of the importance of that principle, one only has to look to the United States of America at this very moment. I should add that I do not suggest for a moment that the role of judges in the constitution does not deserve examination. Indeed, there is an important debate to be had about the proper reach of judicial power—one that is taking place under the auspices of Policy Exchange’s Judicial Power Project. However, there can be no doubt that the Supreme Court acted entirely within its powers in the Gina Miller case and came to a conclusion that was in accordance with the law.

Various noble Lords have put down amendments to the Bill, seeking no doubt to improve the legislation—but on what basis can they reasonably do this? Is it because they are seeking to attribute reasons for the United Kingdom voting to leave which were not in fact provided by the vote? I suspect that the motive is a perfectly worthy one, which is to ensure that the terms of our departure are as satisfactory as, in their view, can be obtained—or, in the case of the Liberal Democrats, that we have an opportunity to think again.

No one on either side of this debate can properly be described as lacking in patriotism. All noble Lords, I am sure, are anxious to ensure the best possible outcome for the United Kingdom—and I do not welcome veiled, or not so veiled, threats to abolish this House if it does not simply acquiesce with the Commons. However, respect for the rule of law and the democratic process drives me to the clear conclusion that we, the unelected House, should pause long and hard before fettering the Government’s undoubted powers to withdraw from the European Union under Article 50.

Rarely do Bills return to the House of Commons without your Lordships having improved them. I am sympathetic to the amendments that concern the rights of EU citizens and the desirability of a so-called meaningful vote after a putative deal has been reached, but I expect to be reassured on these points by my noble friends the Ministers, who will regard these amendments as essentially probing. Our chance to influence matters will come, but we must realise our limitations as the unelected House. The noble Baroness, Lady Ludford, whose enthusiasm for and experience of the EU is much respected, said in the recent edition of the House magazine that,

“the unelected Lords may again have to pressure the Commons to better represent the people”.

There are so many ways in which I am uneasy with that observation that I think it had better speak for itself. No doubt when the noble Baroness winds up this debate she will be able to enlighten us on the democratic legitimacy of that observation. My present view is that we should send this Bill back to the Commons with neither a word added nor a word subtracted.