European Union (Notification of Withdrawal) Bill

Lord Higgins Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

In the period between now and next week, when my noble friend on the Front Bench reflects on what the noble and learned Lord, Lord Hope, said about how we might consider what needs to be done to make sure we do not end up in the courts again, all of us need to support the Government in making sure that we place Parliament in the best possible place to serve the public best, and that is not necessarily giving ourselves more power.

[Lord Higgins (Con)]

My Lords, Amendment 17 is tremendously important because it seeks to assert that the decisions on these matters should be taken by Parliament. I have great difficulty understanding why the Prime Minister and, apparently, the Government have seemed so determined to avoid that happening, to the extent of bringing a totally unnecessary court case. They could have gone back right from the start on the procedure we are now going through at considerable public expense. Against that background, it is very important that we should get this amendment right. We must have an awful lot of thought between now and next week to ensure that the amendment we actually pass is the right amendment.

The other point that one needs to take into account is the situation likely to arise towards the conclusion of the negotiations. It seems to me essential that Parliament should decide whether it does or does not accept those negotiations. The difficulty is that if no deal is reached, the whole deal is off and we are back to the situation before we joined the European Union. The interesting question is: if the deal is clearly worse than remaining in the European Union, what happens then? At that point, Parliament needs to consider whether it has accepted the result of the referendum. If it has done everything possible to bring it about but now finds itself in the situation where it is blatantly obvious that the deal is worse than remaining in, it ought to make that decision. Those who voted in the referendum in favour of leaving should realise that that is a sensible solution for us to adopt.

There is one further point that we need to consider before next week and we will need to read very carefully everything that has been said this evening. We may find at the end of negotiations that we would like to change our minds and it would be better to go back to the situation before the referendum. A committee of your Lordships’ House dealt with that issue very clearly having taken expert advice from, I am assured, some very good lawyers, who said that we could change our minds. That possibility was disputed by a number of other lawyers, not least international lawyers. It would be extremely helpful if we could have a definitive view from the Government next week on what the situation is.

We have a lot of work ahead of us for the next few days, but this has been an immensely helpful debate. There is a problem with proposed new subsection (4) of the amendment. I interpreted that as being enormously pro-Brexit. It states that Ministers are not allowed to stop the arrangements if they want to. Having said all that, it has been helpful to have this debate this evening and I look forward to hearing my noble friend Lord Hailsham, who was kind enough to give way to let me speak before him.

[Lord Lisvane (CB)]

My Lords, I hope that the noble Viscount will be kind enough to allow me to interpose very briefly. I support the thrust of Amendment 17 and certainly the aim that it seeks to achieve, but I have a couple of questions about the mechanisms that it proposes to do that. It proposes proceeding by resolution of each House. There are two issues. First, what happens if a straightforward approval Motion is amended and the final result is a resolution that overall approves an outcome but contains some sort of rider or condition? Regulating parliamentary proceedings by statute, in my experience, generally ends in some sort of tears. A question of whether the outcome met the requirements of the legislation could be resolved only by the courts, and that might not be a welcome result.

Secondly, what happens if one House comes to the required resolution but the other does not? Perhaps the solution is one that would endorse the sage advice given earlier by my noble and learned friend Lord Hope of Craighead which is to employ primary legislation, because that contains very well-understood mechanisms for securing agreement between the two Houses.

Article 50 (Constitution Committee Report)

Lord Higgins Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord Higgins (Con)]

My Lords, we should be immensely grateful to the chairmen of the committees, who have presented two reports of considerable importance given the general confusion about what is going on following the referendum result. It is interesting that the House of Lords is taking the lead in providing such reports. I hope they are regarded as obligatory reading in another place and that the Library, which has been producing excellent information, will ensure that it is reflected in the other Library. I also hope that as things progress, the various Select Committees of both Houses—particularly the departmental ones in the other place—make a considerable contribution.

Those of us who sat through debates on the Bill that set up the referendum will be only too aware that it was an advisory referendum. That is an important point to stress but, as my noble friend who opened the debate pointed out, it was against the background of considerable political commitment to implement whatever the referendum produced.

We ought to spend a moment considering the whole issue of referendums, because one thing has emerged clearly from both the Scottish and EU referendums: they can be immensely divisive, and so they proved to be. They show clear divisions of opinion and create a situation in which it is easy for the public to be lied to and misled. I think that happened to a very significant extent in the referendum on our European Union membership.

I personally have always been totally opposed to referendums. They are often said to be democratic. However, they are not democratic in the sense in which that is usually meant in this country. We have a representative parliamentary system of democracy but the reality is—I think this is increasingly apparent—that that can come into conflict with a referendum result. There is a huge difference between those two situations. A referendum takes a very generalised approach and is open to a lot of confusion, whereas in a parliamentary democracy the Houses of Parliament can take into account all the arguments in great depth and detail, subject them to scrutiny and make sure that minorities’ interests are taken into account. It is absolutely clear that the referendum we have just had is effectively the dictatorship of a majority. That is something we ought to be concerned about.

We should be grateful for the very clear statement on this issue in the Constitution Committee’s report, which points out:

“The legislation that enabled the EU referendum did not set out how the result would be implemented … Parliament may wish, in future, to ensure that detailed consideration is given to how the result of any referendum will be implemented in advance of the vote … occurring, and … whether explicit provision should be made in the enabling legislation … to implement the outcome … or … instruct the Government”,

on how they should act. After the in some ways rather sordid events of the last referendum, we must sit back and decide whether we want to go along the referendum route at all. If we never have another referendum, I, for one, would not be upset.

On the more detailed provisions, the Government’s reaction has been to treat—

[Lord Robathan (Con)]

If there were to be another referendum, which side does my noble friend think would win? Contrary to what is written in some newspapers, a lot of people say to me, “I voted remain but actually, I am delighted with the result and I am working towards a very good end for Brexit”.

[Lord Higgins]

Since I am not in favour of any more referendums, that question does not arise. However, I certainly do not think we can go on having a continuous series of referendums in which we decide whether the result of the previous one was right or not. That would not be a very satisfactory situation.

I find the Government’s attitude somewhat puzzling. I do not understand why the Prime Minister seems so determined not to allow Parliament to play a role, to the extent that the matter was submitted to the courts. Surely we want an element of co-operation now, which I hope we will have. None the less, the Prime Minister has seemed very reluctant to have any parliamentary involvement if she can possibly avoid it. It is worth mentioning a specific point regarding the courts. In an earlier report the Select Committee took the view that the decision to implement Article 50 could be reviewed in the course of the two-year period. At the end of the two years, what has been negotiated might well be clearly less favourable than the situation pre-Brexit, and we will want to change our minds. The Select Committee’s previous report said that it was clear that we would be able to change our minds. In considering this matter the court took a common ground between the two sides before it, but it is still rather undecided. I hope that when the Supreme Court considers the matter further, it will be made clear whether we can change our mind during the two-year period.

Finally, on the way the negotiations are to be conducted, the summary of the European Union Committee’s report makes it clear that:

“It is inconceivable that these negotiations should be conducted by the Government without active parliamentary scrutiny”.

The report then looks at the various ways that might take place and suggests a middle course whereby Parliament is involved and there is interchange between the Government and Parliament. The paragraphs I have referred to and the summary effectively set out a shopping list of the information Parliament ought to have during the negotiations. There is a good shopping list on page 3 of the report. I hope the Minister can confirm that that is an appropriate way for us to proceed and that the Government will ensure that, while we will not have a running commentary, Parliament will none the less participate to a considerable extent throughout this process until we are able to reach a final decision. At that stage, Parliament will need to decide whether the deal that has been struck is better than the situation we had before Brexit.

Brexit: Article 50

Lord Higgins Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Bridges of Headley]

As I said, I am not going to go much beyond what I said before. I totally respect and wish to protect the independence of the judiciary, and I am absolutely sure that those judges acted in good faith.

[Lord Higgins (Con)]

The Statement seems to imply that the referendum made a decision to leave the European Union. Those of us who served on the Bill setting up the referendum know that that is not so; it was clearly an advisory referendum. It is therefore very important that the Government should not now treat it as a mandatory referendum which would be contrary to and incompatible with our system of representative parliamentary democracy. I think the right thing to do now is to take the advice of the referendum, but it is clear that on the details—the expression “Brexit means Brexit” is totally meaningless—Parliament should be able to take a view on whether to implement Article 50 and go along with the judgment of the High Court.

[Lord Bridges of Headley]

My Lords, the Government are appealing against the judgment of the High Court and believe that the views of the 17.4 million people who voted to leave should be respected. As regards the position of this House, I repeat all the points I said before about the role it has so far had in setting up the referendum and the role it will have in due course in issues such as repealing the European Communities Act.

Next Steps in Leaving the European Union

Lord Higgins Excerpts

Monday 10th October 2016 Lords Chamber

[Lord Bridges of Headley]

My Lords, I am sorry to repeat what I have said but the voice of this House and the other House will certainly be heard in the process, as I have already set out. As we go through the negotiating process, I am sure that there will be ample opportunity to question me and my colleagues in the other place about how the negotiations are proceeding.

[Lord Higgins (Con)]

My Lords, is there not always a danger with referendums that they become the dictatorship of the majority and do not take into account minority interests, even when the minority is as large as 48%? Does my noble friend agree that we have a representative parliamentary system of democracy which defends minority interests, and that we therefore ought to play a full role in deciding exactly what was meant by the result in the referendum? The other point which ought to be made is that there is some danger of the negotiations becoming a kind of trade-off where you go for either the single market or free movement of people. As far as British industry and finance are concerned, it is entirely in their interests to secure satisfactory arrangements on both. We ought not to be making a trade-off between one and the other.

[Lord Bridges of Headley]

On the first point, I fear that I have little more to add. As regards financial services, my noble friend makes a very good second point. Again, my right honourable friend the Secretary of State, my other ministerial colleagues and I have been meeting representatives of the financial sector. They have addressed their need for access to talent and access to markets, which brings us on to the issues of passporting and equivalence, and all those points. We are now considering all those matters and noting carefully the points that they are raising.