Article 50 (Constitution Committee Report)

Debate between Lord Higgins and Lord Robathan

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.