Brexit: People’s Vote

Lord Finkelstein Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Finkelstein (Con)]

My Lords, it is a privilege to follow so many compelling speeches. I start by telling noble Lords about an article that I did not write in the Times. About two weeks before the referendum in Scotland, I consulted a friend who was working on the union campaign. “We’re going to win,” he said, “But I have one remaining worry. I’m concerned that Alex Salmond will offer voters a second referendum”. If he does that, my friend said, “We will lose 65-35 or worse”. The risk of supporting independence would have been removed. I realised that he was right, and the thought was powerful. I decided that I had better not write a column about it, because I did not want to help end the union by giving Mr Salmond any ideas.

If, during the European referendum, we had said that there was going to be a second chance to vote, it would have changed the result profoundly. Leave would have won a heavy victory and would have established a national consensus behind Brexit. Any second vote would have started in a fundamentally different place. But during all the debates in Parliament no one suggested two votes; no one proposed a second referendum. A second referendum might easily be even more divisive than the first. I respect the hopes of the noble Lord, Lord Marks, that it would be an urbane discussion on climate change—good luck with that. It would also very likely produce an outcome that remains disputed. Let us be clear that this so-called people’s vote, if it ever took place, would indeed be a second referendum. The idea at the Labour conference that it might be a referendum without a remain option was obviously ridiculous. Mr Corbyn appeared to suggest that we might be offered two options in such a referendum, both of which he was against.

What is being proposed now is a fresh vote on Brexit. I agree with almost every argument that I have heard about the damage of Brexit. I voted remain and I agree with them partly because I made those arguments myself in the campaign. But we lost. That is what the referendum was about: testing public support for precisely the arguments and threats that we are now repeating in this Chamber. The noble Lord, Lord Bilimoria, was auditioning for “Just a Minute”—he was all right on hesitation and deviation but not on repetition. Proposing that now, when we did not say previously that we should have a second referendum, is highly undesirable and not a costless option. Millions will feel that we have betrayed our promise. Some are even suggesting a three-option ballot using preference voting; in other words, suggesting that we defeat the result of the last referendum using the voting system rejected in the referendum before that.

We promised people they could make the choice in an up and down referendum. A second referendum is therefore an outcome to be avoided if it can be. But to say this is not enough, I am afraid. I finish with an observation and a warning. The observation is that, if Parliament cannot agree on a deal, there may well be a second referendum, however undesirable. The warning is to my Brexiteer friends. Having voted to remain, there are many of us who regard it as our constitutional duty to make our very best efforts in good faith to deliver Brexit. We do not, however, expect to be making that good faith effort alone. I am not going to make it by myself. You cannot look to us to deliver your Brexit if you will not make compromises yourself. You cannot expect us to tip the country into chaos because you will not make the good faith effort that you demand from us. Good faith cannot be a one-way street. So the warning is this, and I hope you are listening and understand that I am not alone: you cannot take the rest of us for granted.

European Union (Notification of Withdrawal) Bill

Lord Finkelstein Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Bilimoria]

My Lords, in 1975 I was barely a teenager.

I conclude by saying that the main reason why we need to support this amendment is for the sake of future generations and to protect them. I am sure that noble Lords have received several tweets, emails and letters from individuals. Just this morning I received an email that said, “Please support parliamentary democracy and our young people’s future”. One of our doorkeepers reminded me of an ancient Gaelic saying: “We do not inherit the earth from our ancestors, we borrow it from our children”.

[Lord Finkelstein (Con)]

The noble Lord, Lord Hannay, seemed to suggest that we should support this amendment because Article 50 was not unilaterally irrevocable and that we would have to leave the EU. The argument used by the noble Lord, Lord Bilimoria, just now was that we should support the amendment because it is unilaterally irrevocable. Which is it?

[Lord Bilimoria]

Whether it is irrevocable has not been tested legally. The expert on this is the noble Lord, Lord Kerr, who wrote Article 50 and who claims that it is revocable. However, this amendment would cover all potential outcomes, and that we should have.

--- Later in debate ---

[Lord Lawson of Blaby]

My Lords, as my noble friend Lord Hailsham—

[Lord Finkelstein]

Did the noble Baroness finish? I wanted to intervene on her.

[Baroness Kennedy of The Shaws]

I think the noble Lord, Lord Finkelstein, wants to come in on the points that I was making. I had actually more or less completed my speech, but if he wants to raise an issue—

[Lord Finkelstein]

Was the court’s judgment not based on the idea that this was authorisation? The court would have not have ruled as it did if it had not assumed that this was not unilaterally revocable. Both sides in the court case, including the noble Lord, Lord Pannick, said that it is not unilaterally revocable, and the court ruled specifically because of that that authorisation is delivered by triggering Article 50. If it had not done so, it would not have ruled as it did; therefore, it is crucial to the understanding that this is authorisation.

[Baroness Kennedy of The Shaws]

It is notification of withdrawal; it is not a withdrawal Bill.

--- Later in debate ---

[Baroness Symons of Vernham Dean]

My Lords, I do not know what people will feel like in two years’ time. We know that the demographics will have changed and that young people will be coming on to the electoral register and, as we all know, young people have taken a very different view about our leaving the EU to that taken by older people who will no longer be able to vote.

I have two specific questions to ask the Minister. The noble Lord, Lord Lawson, said that the Supreme Court’s judgment was that Article 50 was irrevocable—a view just reiterated by the noble Baroness, Lady Deech. I thought that the Supreme Court judgment was rather more nuanced than that: that because the parties to the action were prepared to use that as the basis for forming their judgment, they had not tested the arguments on the irrevocability or otherwise of Article 50. So there was a clear statement that they had not tested that argument.

On Second Reading, I asked the noble Lord what the Government’s views were on that. In a very skilled response at the end of the debate, he said that it was the firm policy of the Government not to turn back having triggered Article 50. The noble Lord knows that that was not the question I asked. We are not asking about the firm policy. What we need to know is the Government’s legal view on the revocability or otherwise of Article 50. That is a crucial question because if the issue does come back to Parliament, we will be in a very different position if it is revocable. I ask the question, and hope that this time I might have the answer.

My second question is about the position whereby the Government have sought to bypass Parliament, as indeed they did, by saying that the prerogative powers were sufficient to trigger Article 50. It did indeed take private individuals, represented by the noble Lord, Lord Pannick, to go to court to prevent the Government going beyond their powers and bypassing this Parliament. The Government had assumed they had powers by using the prerogative, and the Supreme Court was able to disabuse them of that.

[Lord Finkelstein]

Does the noble Baroness accept that the reason the court made that judgment was that both parties had agreed that it was not unilaterally revocable? That is the reason why both parties had to agree, otherwise the court would have ruled differently. It ruled that this was a parliamentary decision of authorisation. That is the reason why it had to come back to Parliament. It would change the law.

[Baroness Symons of Vernham Dean]

The point that the Supreme Court made was that it had not tested the point about revocability. I say to the noble Lord, who knows what the outcome would be if it were asked to do that? The political position now is that the Supreme Court has not made that judgment, and it took going to the court to get the views that we have.

When we get to the end of this whole discussion, I wonder what the Minister will be able to say about our ability to trust the views of Ministers. I am not saying that we do not believe that Ministers really want to come back to Parliament, but the only assurance we will have is putting it in the Bill. The Government do not have good form over this. They foolishly went on to the Supreme Court after the High Court had told them what the judgment should be. We need this in the Bill because the Government have form for bypassing Parliament, and we need to know that that will not happen again.

We need the best legal checks and balances we can get—not to stop Brexit but to make sure that we obtain the best this country can get from it. That is why we need to vote for this amendment today. It is also why, if the amendment is successful in this House, I hope it goes on to be successful in another place. Britain relies on parliamentary sovereignty and now is the moment for it to be fully asserted by this House—not in six months’ time, not in 18 months’ time, not at the end of the period of negotiation. We have to make sure legally that Britain’s best interests are protected and safeguarded. That is the job of this Parliament. It is our job here today and I urge this House to vote for the amendment.