Brexit

Lord Howard of Lympne Excerpts

Saturday 19th October 2019 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, it is always something of a bittersweet pleasure to follow the noble Lord, Lord Kerr, if only as a faint reminder of the long-ago days when we worked together in relative harmony. I begin by addressing one of the observations made in her opening remarks by the noble Baroness the Leader of the Opposition. She complained that the views of the 16 million people who voted to remain in the European Union referendum were being, to use her word, “ignored”.

I pose this question. Can there be any doubt that if it had gone the other way—if 17.4 million people had voted to remain and 16 million people had voted to leave—the view of the 16 million would have been, to use the noble Baroness’s word, “ignored”? Can there be any doubt that we would simply have remained in the European Union and the 16 million people’s views would have been ignored? In fact, the decision to remain or to leave is in essence a binary choice, and that choice was made by the people of the United Kingdom in the referendum of 2016. In particular for the reasons advanced by the noble and learned Lord, Lord Judge, with whose speech I entirely agreed, that decision must be respected and implemented.

I congratulate the Prime Minister on the result of his negotiations. He has achieved what I believe to be a good deal—a deal that many thought impossible—and he deserves full credit for that. The merits and alleged demerits of the deal have been extensively disseminated over the airwaves and in print over the past few days and in your Lordships’ House this morning. I do not propose to weary your Lordships by repeating them: I want to make one simple additional point.

The cry of those who oppose this deal—I exclude the opposition from the Brexit Party, which verges on the eccentric—and which we have heard this morning, is that Brexit, including the form of Brexit in this deal, will damage our economy. That argument, which we have heard many times, is based on forecasts that may well prove mistaken. I think it was the great economist John Kenneth Galbraith who said that economic forecasting was invented only to give astrology a bad name.

I think everyone would agree that our economic performance has been held back over the past three years by the uncertainty over our future that has bedevilled the period which has passed since the referendum. Although it is impossible to predict the precise outcome of any rejection of this deal today, it is absolutely clear that almost all possible outcomes of that course of action will increase the uncertainty and the economic difficulties.

I say almost “all possible outcomes”, because I suppose one would be that we Brexit without a deal of any kind. That would not necessarily increase the uncertainty, but it is obviously not an outcome desired by those critics of the deal whose arguments I seek to address. All other outcomes would, beyond dispute, increase the uncertainty. An extension would, by definition, increase the uncertainty. A second referendum would increase the uncertainty. A general election to determine this issue would increase the uncertainty.

Yet these are the outcomes urged on us by those who complain that this deal would cause economic damage. I beseech them to consider and reflect. If they are democrats, they must respect the result of the referendum. If they are realists, they must recognise the damage to our economy that would be caused by the prolonged uncertainty that rejection of this deal would bring about. If they have the interests of our country at heart—and I know they do—they must see that this deal presents a unique opportunity to resolve this most intractable issue, to move on and to bring our country together again. I commend the Prime Minister’s deal to your Lordships’ House.

European Union (Withdrawal) (No. 6) Bill

Lord Howard of Lympne Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Howard of Lympne (Con)]

Will the noble Baroness now answer the noble Lord’s question?

[Baroness Ludford]

I just have.

--- Later in debate ---

[Lord Howard of Lympne]

My Lords, it is always a pleasure to follow the noble Lord, Lord Campbell, with whom I have had the pleasure of jousting over many decades. Occasionally I have even agreed with him. I will not follow his speech in its entirety, but before I address the remarks that I prepared I will deal with one of the observations he made and challenge one of the myths that has grown about the role and achievements of the European Union.

It is often said and rarely challenged that one of the great achievements of the European Union was peace in western Europe after the Second World War. I do not believe that to be true. The peace that has existed in western Europe after the Second World War actually owes more to the Soviet Union than it does to the European Union. It was inconceivable for almost 50 years after the end of the Second World War, when western Europe faced an existential threat from the ambitions of the Soviet Union, that any further fighting should take place in the western part of the continent. They were obliged to unite to face that threat. That was why we had peace in western Europe for 50 years after the Second World War. Of course, happily, after that period had lasted and the Soviet Union had disintegrated, the countries of western Europe had got out of the habit of fighting each other and we have been able to enjoy peace ever since.

[Lord Patten of Barnes]

Does my noble friend seriously think that the only reason for Franco-German reconciliation after the war, which is at the heart of European peace and building a new Europe out of the moral, economic and political rubble, was the Soviet threat? It might have contributed, but there were far bigger political issues that produced that, thank heavens for all of us.

[Lord Howard of Lympne]

We can argue about whether it was the only reason. Of course other factors encouraged Franco-German reconciliation, but the peace of the western half of the continent was an inevitable consequence of the threat those countries faced from the Soviet Union to the east.

[Lord Liddle]

This is a very interesting historical debate, but I add to it to the point that one reason why Franco-German reconciliation occurred was because of the construction of the Federal Republic of Germany —in which Britain, in the post-war Labour Government, in particular its Foreign Secretary, Ernie Bevin, played an absolutely central role—and its being one of the most successful states in Europe since the Second World War. That has been an essential underpinning of European union and peace.

[Lord Howard of Lympne]

I can go a long way towards agreeing with the noble Lord, but that is a somewhat different matter from the role of the European Union.

[Lord Cormack (Con)]

Following on from what the noble Lord, Lord Liddle, just said, would my noble friend agree that we would not have had a peaceful Europe without a strong, stable Europe? Fundamental to creating that stability was the Coal and Steel Community, out of which came the European Common Market, as it was originally called. I believe it was a profound mistake, which a very great British Prime Minister tried to put right, that we were not in much earlier. My noble friend cannot say that it was just the Soviet threat that created a strong, stable Europe because that is manifestly untrue.

[Lord Howard of Lympne]

With respect to my noble friend, I did not say that. I repeat what I said: peace in western Europe after the Second World War owed more to the Soviet Union than it did to the European Union. I did not say that the Soviet Union’s threat was the only factor. Of course there were other factors. Many of the things said in questions to me in the past few minutes have considerable truth to them, but it is ridiculous to ignore the extent to which peace in western Europe was a consequence of the existential threat that the western part of the continent faced from the Soviet Union to the east. I would like to proceed to consider the Bill.

[Lord Hannay of Chiswick (CB)]

I do not intend to prolong this historical debate, other than to say to the noble Lord that he is falling into the trap that an earlier speaker warned us about—he is being too Manichean. He is juxtaposing the Soviet Union threat, the NATO response and the European Union. It is all of them together. It is because they are all working together to common aims that we have managed to come through better. When war broke out in Europe again in the 1990s, in the Balkans, the longer-term response to that has come mainly from the European Union. Surely we can move away from this distorted view of history and accept that the European Union has played an integral part in our security and prosperity but not the only part.

[Lord Howard of Lympne]

I do not disagree with the noble Lord. His intervention establishes that we have made some progress because, in common parlance, the European Union is frequently given the entire credit for creating peace in western Europe after the Second World War but I do not believe that to be true.

[Lord Campbell of Pittenweem]

Will the noble Lord give way?

[Lord Howard of Lympne]

I shall not give way on this any more. I want to move on to consider the Bill before your Lordships’ House today, on which we ought to focus our attention.

The noble Lord, Lord Hennessy, whom we all admire and for whom we have so much affection, has recently propounded a novel theory of government and has given it a name—he calls it the government of good chaps. He is in a better position to explain his theory than I am but, as I understand it, one of the elements is that the constituent parts of government and our unwritten constitution should behave within their respective roles as understood by convention and tradition under those unwritten rules. I contend that the legislation before the House is a fundamental breach of the good chap theory of government.

I shall endeavour to explain why I have reached that conclusion. Our unwritten constitution is based on the separation of powers—in particular, between the Executive and the legislature. It is the role of the Executive to govern; it is the role of the legislature to hold the Executive to account—to hold to account but not itself to govern. This Bill represents an attempt by the legislature to assume the mantle of government. That is why it is wrong and illegitimate, constitutes a fundamental breach of the good chap theory of government and is in breach of the conventions of our unwritten constitution. These observations would apply regardless of the underlying reason which gives rise to the Bill; and the fact that the underlying reason underpinning the Bill relates to Brexit makes it even worse.

[Lord Butler of Brockwell (CB)]

If the only role of Parliament is to hold the Government to account, how does the noble Lord explain the fact that we pass laws which bind the Government? We often amend Bills that the Government introduce in a way that they do not want. We do more than hold the Government to account; we set the way in which the law of this country and the Government act.

[Lord Howard of Lympne]

Parliament passes laws initiated by government, and when Parliament passes, and indeed amends, those laws, it does not enter into the detailed prescription of government contained in this Bill. That is why this Bill and its predecessor, introduced earlier this year, represent so fundamental a breach of precedent. They were facilitated only by the fact that the Speaker in the other place decided to dispense with precedent and, as far as we are aware, to dispense with the advice he was given and to allow the Opposition to take charge of the business of the House.

I want to take the House back to the Second Reading of the referendum Bill in the other place—the Bill that provided for the referendum. That debate was introduced by the then Foreign Secretary, one Philip Hammond. He said that,

“whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber”.

I repeat,

“or parliamentarians in this Chamber”.

He said that the decision should be,

“for the common sense of the British people”,

and that this Bill,

“delivers the simple in/out referendum that we promised”.—[Official Report, Commons, 9/6/15; col. 1056.]

The Bill which provided for that referendum was of course passed by a very large majority, but the difficulty that we have faced ever since is that the British people delivered a result that Parliament neither expected nor wanted. I am happy to give way to the noble Lord.

[Lord Winston (Lab)]

I do not want to take up much time but it is very clear that, if we had to take the decision again, we would not have a referendum.

[Lord Howard of Lympne]

The noble Lord is entitled to his view but I would not agree with him.

That is the root cause of the difficulties that we have faced over the last three years. Parliament took a different view. Parliament got the result from the British people, and certainly the then Foreign Secretary, who moved the Second Reading of the Bill, got a result very different from the one that he wanted or expected. I regret to say that Parliament has, at every turn, sought to thwart the implementation of that decision of the British people, and this Bill is but the latest instalment of that sad endeavour. Of course, it gets us nowhere. We have had one extension as a result of the Bill’s predecessor. It has given six months of extra time, which has resulted in no conclusion. The failure of the noble Baroness, Lady Ludford, to answer the question posed by the noble Lord, Lord Grocott, was eloquent in its admission that those who came together to support the Bill before your Lordships, both in the other place and in this House, are not in any sense in agreement about the next steps and what ought to be done.

This situation is made even more serious by the refusal of those who proclaim their belief in democracy to put that belief into practice. It is bad enough that Parliament thinks that it knows better than the British people on this issue; it is even worse that, as things stand at the moment, Parliament is denying the British people a general election in which they would have the right to decide and to express their view on the performance of the malfunctioning of the other place and to insist on the implementation of the decision that they took in 2016. This Bill is, I hope, one of the final acts of a House of Commons that has proved itself manifestly incapable of meeting the challenges in front of it. I urge your Lordships to reject it.

[Lord Hope of Craighead (CB)]

My Lords, we have had only one speech from the Cross Benches so far. I suggest that one more might be appropriate at this juncture.

[Lord Campbell of Pittenweem]

The noble Lord would be regarded as a good chap if he were to give way to me, which he declined to do before. I have never said, nor did I say in my remarks, that the European Union was the sole cause of stability in Europe. Of course, NATO played its part. Indeed, I implied that when I referred to the attitudes and policies of Mr Putin. If he is endeavouring to infer that I believe that Europe alone has kept the peace, that is not the case.

[Lord Howard of Lympne]

The noble Lord did not say so; I entirely agree. However, it is very commonly said—and it is not true.

--- Later in debate ---

[Lord Patten of Barnes]

The point I continually make is that absolutely everywhere, whether it is in Switzerland and France, Norway and Sweden or the United States and Canada, if one is in a different customs union from one’s neighbour, there is a hard border.

[Lord Howard of Lympne]

I am most grateful to my noble friend for giving way. I would be very interested to know how he reconciles what he has just said with the fact that when, for a few weeks earlier in the year, it looked as though we might be leaving the European Union without an agreement, the Government said that they had no intention of putting up a hard border on the island of Ireland, and Mr Varadkar, Mr Barnier and Mr Juncker also said that they had no intention of putting up a hard border on the Republic side of the border. If no one intended to put up a hard border in the event of no deal, there must be a way through.

[Lord Patten of Barnes]

My noble friend knows perfectly well that under WTO rules, and for other reasons as well, if the Republic of Ireland is in a separate customs union from Great Britain, there has to be a border. It is a WTO rule. There is a border and traffic is stopped there.

There is a point that resonates even more than the economic argument, which is the question of security. I am sorry to personalise this, but a lot of our knowledge—and our prejudices, perhaps—in politics come from our personal experiences. The first time I saw dead bodies, apart from those of my parents, was near the Newry customs post in Northern Ireland, where I saw part of a leg on top of a rhododendron bush. We know perfectly well that if we do not get this right, there is a danger of people being killed—not just of businesses being destroyed or communities being devastated, but of people dying. If people do not believe that, they should read what is said again and again by the Police Service of Northern Ireland and the Garda Síochána.

These are terribly important issues and I just hope that we will bear in mind these facts, as well as the questions of economics and trade, when we are determining the relationships between Northern Ireland and the Republic of Ireland and between the United Kingdom and the Republic of Ireland, which many people still seem to treat as though we have viceregal authority over it. These are great friends of ours and we should treat them rather better than we do.

European Union (Withdrawal) (No. 5) Bill

Lord Howard of Lympne Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Goldsmith]

That was the view the House took on each of those closure Motions.

To deal with the substance, we oppose the amendment, essentially for the reason put forward by the noble Lord, Lord Pannick—that we should not send this Bill back with constraints on the other place. What will then happen is for the Prime Minister and the other House to determine, but I urge the noble Baroness not to press her amendment.

[Lord Howard of Lympne (Con)]

The noble Lord says we should not put constraints on the other place when we consider these amendments. Has not the argument been put forward many times from the Benches on which he sits that we should take into account the extent of the majority in the other place for any legislation we are considering? I cannot recall a narrower majority than the one by which this Bill was passed in the other place.

[Lord Goldsmith]

I will not attempt definitions of words; I am a lawyer, not a grammarian.

--- Later in debate ---

[Lord Pannick]

I entirely accept that.

It is necessary to have legal certainty on the retention of the Prime Minister’s powers on such an important matter. That is why the noble and learned Lords, Lord Judge and Lord Goldsmith, the noble Baroness, Lady Ludford, and I have all put our names to Amendment 7.

[Lord Howard of Lympne]

My Lords, I have listened with care to the speeches of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, and the intervention from my noble friend Lord Hailsham. I do not have my noble friend Lord Forsyth’s advantage because I have the misfortune of having trained and practised as a lawyer, so I am in that difficult circumstance. I am confused by the exchanges that have taken place. I draw only one inference from them: this appalling piece of legislation is totally misconceived. It seeks on the one hand indubitably to constrain the exercise of the royal prerogative by the Prime Minister. That is its main purpose. Now we have amendment after amendment that seek to persuade us that it is only in some circumstances that the royal prerogative should be constrained and that in others it is absolutely necessary because, as the noble Lord just said, the Prime Minister must be able to make use of the royal prerogative when she is involved in negotiations of this kind. It is negotiations of this kind that the Bill is all about.

The fact is that the Prime Minister will be involved in negotiations about the date on which we exit the European Union, the conditions in which we do so and any terms that might be sought by the European Council to limit the extent to which we might be able to act in accordance with the result of the referendum. The Prime Minister will be engaged in negotiations of that kind. She ought to be able to exercise the royal prerogative when she engages in those negotiations, as the noble Lord said a moment ago. This ludicrous Bill, which seeks in part to restrain the royal prerogative and then to subtract from the extent to which it constrains it, is wholly misconceived and should never reach the statute book.

[Baroness Ludford (LD)]

My Lords, perhaps I could assist the noble Lord, Lord Howard, to see this situation in a different light when it comes to the European Council on Wednesday: as a happy blend of parliamentary accountability and government flexibility. I agree with the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, that the combination of Amendments 5 and 7 supplies both legal and practical certainty. They perhaps take away the complication that might be in the minds of the Council on Wednesday night about what happens if the Prime Minister proposes or agrees to a different extension to what is being discussed in the other place.

The noble and learned Lord, Lord Goldsmith, is also right that there could be some discussion about the difference in wording between Clause 1(7), about a proposal, and a scenario of agreement by the Prime Minister at the European Council. We need to remember that the specific context that is being addressed by Amendment 7 is envisaging what happens in those negotiations at the European Council. Like the noble and learned Lord, I look forward to the response from the Minister—

--- Later in debate ---

[Baroness Ludford]

I was reflecting the position and view of my colleagues in the other place. As I said, in principle, we prefer the affirmative procedure. However, I would also prefer to avoid the catastrophe of no deal. Therefore, it would be ridiculous for us to get to the end of week and be prevented from amending exit day by the inhibitions of procedure. I take the point that negative procedure can be prayed against but that risk is relatively minimal.

It is true that Clause 2 is headed, “Procedure for ensuring domestic legislation matches Article 50 extension”. If the Article 50 extension has been agreed to, it is in EU law. I remember the Government being slightly coy two weeks ago in acknowledging that EU law trumps domestic law. Our amending exit day to accord with the date of an extension is an essential tidying-up exercise in domestic law; otherwise, discordance between the two dates leads to uncertainty. It is essential that exit day accords with the Article 50 extension.

[Lord Howard of Lympne]

The noble Baroness was rather dismissive a moment ago about the inhibitions of procedure. Is this whole Bill not designed to put such inhibitions in place? That is what we are discussing. That is what it is all about.

[Baroness Ludford]

I have talked about the specific context. If we get to the end of this week, it would be absurd for us to be prevented from preventing no deal because of the need for an affirmative resolution. That is a very specific scenario which justifies the negative procedure in this case.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, I have been thinking hard over the past few weeks about the meaning of parliamentary sovereignty, which was one of the things that the leave campaign strongly campaigned to restore. Last week, I was struck to hear Mr Jacob Rees-Mogg in the other place defend the relationship between the Government and Parliament at the time of Henry VIII as the most appropriate relationship between monarch and Parliament. Oliver Letwin replied that we had fought a civil war a century later to establish a proper relationship between the Executive and the legislature.

Much of what we are doing in this Bill is not entirely ideal. We need not have had this Bill if the Government had been more united, if negotiations had been expedited and if Parliament had been more actively engaged at an earlier stage. We are now up against a tight deadline and we have to take some emergency measures. That is where we are and we need to recognise that.

[Lord Howard of Lympne]

I wonder if the noble Lord might add this to the conditions in which this Bill would have been unnecessary: if Parliament had been prepared to respect the result of the referendum.

[Lord Butler of Brockwell]

My Lords, I understand the misgivings that many in this House have about this Bill, but I have to say to the noble Baroness that her amendment would not stop the Bill becoming an Act. It is going to become an Act, and that is the mischief, so she cannot stop through her amendment the mischief that she wishes to stop. As the noble Lord, Lord Pannick, said, the Bill ceases to have an effect, so she need not worry about that either.

There is another reason why we should not pass this amendment: with the amendments we have passed so far, supported by the Government, they will be supported in the House of Commons, and so we will not have ping-pong. If we were to pass the noble Baroness’s amendment and the Government resisted it in the House of Commons, the Bill would have to come back here and there would be further delay. Therefore, I urge her not to press her amendment, because it is unnecessary and it will cause unnecessary prolongation of the procedures.

European Union (Withdrawal) (No. 5) Bill

Lord Howard of Lympne Excerpts

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, it is a genuine pleasure to follow the noble Lord. He and I crossed swords many times in the other place, and I always emerged from those exchanges with a great deal of respect and a touch of affection for the noble Lord—but I regret to say that I disagree what he has said to the House this evening. The House of Commons and this House decided to delegate the decision on the future of our relationship with the European Union to the people of our country in a referendum. They did that without qualification. The question on the referendum paper was not, “Do you want to remain in the European Union if we can get satisfactory terms?” or, “Do you want to leave if we can get satisfactory terms?” Rather it was a clear question: leave or remain? The country delivered its verdict without qualification. It said, by a relatively small but clear margin, that it wanted to leave.

Parliament then voted to trigger Article 50 and did so without qualification. Article 50 meant that we would leave the European Union two years after the article was triggered. There was no qualification. It was not a question of our leaving in two years’ time if we could get a reasonable deal; it was that we should leave. That, I believe, is what we should have done last week, but we did not. That was because Members of both Houses of Parliament did not get the answer they wanted. There was a considerable majority in both Houses for us to remain in the European Union. After the result of the referendum, some Members of both Houses who had been in favour of the UK remaining accepted the verdict of the people in good faith. Some accepted it but tried to limit what they saw as the damage. They were reluctant accepters of the verdict of the people. Others—far too many, I fear—have sought to thwart, obstruct and reverse the decision of the people and have never really accepted the result of the referendum.

I believe we should leave the European Union without, if necessary, any overarching agreement. In the end, I was persuaded of the merits of the proposal put by the Prime Minister to Parliament for a third time and I would have reluctantly voted for it. However, the proposal did not achieve the support of Parliament. In those circumstances, I would leave without a deal, which is why in due course I shall vote against this legislation.

I do not want to repeat the points made very eloquently by my noble friend Lord Lilley in his speech today before he was cut off in his prime, but it is the case that we could leave. Preparations have been made on both sides of the channel for us to leave in relatively good order, and that is what I think we should do if the Prime Minister cannot achieve agreement to the terms she has negotiated. The former Governor of the Bank of England has suggested that we should do so with a six-month standstill. After we have left, we should agree with the European Union to trade with each other on the same terms. That is a sensible proposal and I would even go so far as to say that we should give each other 12 months in which to negotiate a satisfactory trading agreement. I have no doubt that if that step were taken, it would be perfectly possible to reach an agreement along those lines.

Given that, I speak against the Bill currently before your Lordships’ House. When the moment comes, I shall vote against it because I think we have to honour the result of the referendum, and the time has come for us to do so.

[Lord Cormack (Con)]

My Lords, is my noble friend saying that he will vote against Second Reading?

[Lord Howard of Lympne]

No, of course not. I accept the procedures of this House, but there will come an opportunity for us to vote on the merits of the Bill and at that stage I shall vote against it.

--- Later in debate ---

[Lord Bilimoria]

Absolutely not. The noble Baroness, Lady Noakes, is here. She was a member of that committee, and I have sat on the committee with her. I was referring to other people. By the way, today’s running order was blessed by the Government. Could the Minister explain how they came to that?

Today, I was not proud of the behaviour of our House. At many stages I felt ashamed of the disgraceful behaviour that I do not think was befitting of the finest, highest-quality debating Chamber in the world. I asked one of our Members who has been here for nearly 50 years, “How bad is this compared with Maastricht?” He said, “Maastricht was a tea party compared with this”.

My noble friend Lord Pannick has clearly said that the Bill is not perfect. None of us says that it is perfect; it was rushed through at the other end. However, he and my noble and learned friend Lord Judge have already found a way of amending the Bill in Committee that will allow it to be effective and will prevent us reaching the cliff edge.

Before I conclude, I want to emphasise how much we need the Bill, because what has been agreed so far is nothing. If my noble friend Lord Kerr were here, he would say, “I wrote Article 50 in order for those two years to be used to agree a future relationship. The withdrawal Bill just becomes part of that, and then you leave after two years having agreed it”. We have not negotiated our future relationship. We have negotiated only three things: people, the backstop and money. And £39 billion out of a £2 trillion economy is absolutely not material in the long run; this big figure is actually not a material figure. What about the political declaration—the wish list of our future? Nothing has been negotiated at all: tariffs, customs, services, market access, regulation, financial services, digital, capital markets, intellectual property, movement of people, aviation, roads, maritime, energy, civil nuclear, data exchange, foreign policy, security, defence, space, cybersecurity or counterterrorism—

[Lord Howard of Lympne]

Would the noble Lord give way?

[Lord Bilimoria]

Do not ruin my momentum, please; I will give way in a second. Nothing has been agreed.

[Lord Howard of Lympne]

I have great sympathy with the point made by the noble Lord. Is it not a fact that it was the European Union that insisted on the sequencing of the negotiations and was not prepared to talk about the future relationship until the withdrawal agreement had been effected, contrary to Article 50?

Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Howard of Lympne Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I hope the noble Lord, Lord Pearson, will forgive me if I resist the temptation to turn this debate into one on the BBC.

In the debate that took place in your Lordships’ House on 27 February, my noble friend the Duke of Wellington, who is of course in his place, said:

“The sad truth is that our political system has failed badly in the two and a half years since the referendum”.—[Official Report, 27/2/19; col. 273.]


I respectfully agree, and it is perhaps worth spending a few brief moments on the reasons for this unhappy state of affairs.

The referendum delivered a result that most of our political class neither expected nor wanted. Most Members of the other place voted to remain. The proportion of Members of your Lordships’ House who did so is even greater. Of those Members of both Houses, some recognised that, since the decision on this fundamental issue had been delegated by Parliament to the people, it was their duty to embrace the result and fully implement it. Others recognised the existence of that duty but, in the words of Mr Nick Timothy, the Prime Minister’s former chief of staff, saw the fulfilment of it as an exercise in damage limitation, rather than an opportunity that could bring great benefits to our country. Others—far too many others—in both Houses have consistently attempted to thwart the will of the people and to seek, by one means or another, to reverse the decision that was clearly made in 2016. That, combined with the intransigence of the European Union, is why we have come to this pretty pass.

Today’s debate comes when it looks as though the Attorney-General’s efforts to negotiate an acceptable way out of the backstop have failed. I am a great admirer of the Attorney-General. He is a man of outstanding ability and, I believe, great integrity. I do not, for one moment, think he would change his advice on the backstop unless the results of his negotiation made it possible for him to do so.

The basic problem the Attorney-General faced—which we face—lies in the terms of the agreement that was so overwhelmingly defeated in the other place. The unique achievement of that agreement was to substitute for our untrammelled, unilateral right to leave the European Union without having to ask anyone’s permission to do so a regime which we could leave only with the permission of the European Union. That is the nub of the problem, and that is why it is so impossible for many of us to support the Prime Minister’s agreement.

It is often said that those of us who hold those views should be prepared to compromise. I cannot speak for anyone else, but I am certainly prepared to compromise. There are many aspects of the withdrawal agreement which I dislike, but I would be prepared to put up with them all if we can get out of the backstop. I do not even ask for the backstop to be replaced, as was required by the Brady amendment which was passed in the other place. A legally binding codicil enabling us to leave would be enough for me, but it does not look as though we are going to get it.

So what should be done? It is essential that we leave the European Union on the 29th of this month. As the noble and learned Lord, Lord Hope, has said, it might very well lead to an explosion of anger if we do not. We owe it to the 17.4 million people who voted to leave, and we must do it if we are not to inflict incalculable harm on the democratic fabric of our country and the bond of trust between people and Parliament, which has become so badly frayed and which must be restored.

The set of circumstances in which we would leave without an overarching agreement is usually described as a “no-deal Brexit” but, as has frequently been pointed out—not least by my noble friend Lord Forsyth during “Any Questions?” on Friday night—this is a very misleading description. Agreements have already been reached on a number of issues, ranging from aviation and road haulage to shipping and nuclear energy. I would have liked there to be many more. Following my noble friend Lord Bridges’s mantra of “I told you so”, if the Government had taken the advice that I offered in the debate in your Lordships’ House on 5 December, when I urged them to co-ordinate their preparations with the European Union, there would by now be many more. It is not too late.

The noble Lord, Lord Liddle, who would, I think, be alarmed to hear that I am about to quote him with some approval, even if it is rather qualified, suggested the way forward in his speech in your Lordships’ House on 27 February. He quoted the evidence that Sir Ivan Rogers had given to his committee. Sir Ivan had said that, if there was no deal, within a week British officials would be on their way to Brussels to negotiate solutions to all the problems we have heard that would create. I differ from the noble Lord and Sir Ivan only on the timing. The discussions to which they referred would not take place a week after we leave; they would take place before we leave, and as soon as it became clear that we are leaving without an overarching agreement.

That is what would happen if the political system to which my noble friend the Duke of Wellington referred was not failing us so badly. That is what would happen if the political class had been determined to honour the result of the referendum and held its nerve, and it could still happen. It would lead to a temporary extension of the current trading arrangements during which we could negotiate a permanent agreement with the European Union, which would benefit both parties. It could happen, and I hope that it will happen. It probably will not happen, and our political system will, alas, continue to fail us.

European Union (Withdrawal) Bill

Lord Howard of Lympne Excerpts

Monday 18th June 2018 Lords Chamber

[Lord True]

Is it unacceptable? No, I am not giving way. I did not catch the remark opposite but I make the point that it is perfectly reasonable for me to address issues surrounding the same person. Mr Dominic Grieve claims that he does not wish to delay or frustrate Brexit—the same thing that is said by all those in that group. However, it seems to me that he is so assiduous in wanting to that he even takes time to go to the offices of the European Commission to report to Mr Alastair Campbell on progress. He is so worried about leaving the European Union that he declares himself ready to “collapse the Government”. There is no doubt that the noble Lord, Lord Grocott, is right: if the Government were unable to achieve the central purposes of the Administration they would be in jeopardy. “Collapse the Government”—hold that in your Lordships’ minds when you consider with whom you wish to align yourselves. Is that the game that your Lordships, in this unelected House, wish to play?

We hear time and again—we heard it again today from others—that none of their actions is intended to delay or prevent Brexit. However, when I see some of the actions, and hear some of their words, I have to say: you could have fooled me. I doubt that they are fooling the good people of Sunderland or Stoke. All that I ask is this: if they do not wish to delay or prevent Brexit, let them be as good as their words and make it clear that none of the Motions they talk about would frustrate it. I freely accept that my amendment might not be the best way of accomplishing this, but it is one way—one that I hope will be given consideration, if not in your Lordships’ House then by others. My amendment is simply an attempt to reflect in law what the people behind this amendment say they want; that is, not to delay or prevent Brexit.

I will not enter into the constitutional rights and wrongs of my noble friend’s aspiration to give the House of Commons potential control over the Government in negotiations, which an amendable Motion would do. However, I believe that to be utterly impractical and totally unconstitutional. It is ridiculous—utterly ridiculous—to conceive that the House of Commons, with over 600 diverse opinions and meeting in public, is capable of determining effective negotiations with the European Union, or indeed the Republic of Vanuatu. It is inconceivable and absurd.

The simple question before noble Lords on these amendments is whether any resolution or Motion outside an Act of Parliament should be capable of delaying or preventing the United Kingdom’s departure from the European Union, which an amendable Motion of the type proposed by my noble friend may well, or should it not? I submit that it should not. I submit that it is time for us to respect the votes—and listen to the roar that goes up—of 17.4 million of our fellow country- men and women in the referendum. For me, at least, those votes had meaning, profound meaning. I submit that we should respect the 27.5 million votes given at the last general election to parties promising to deliver what the British people had voted for, including the Front Bench opposite, who dive and duck to get out of the commitments that they gave at that general election. For me, those votes at that election had meaning, profound meaning. I submit that no parliamentary manoeuvre, no resolution and no Motion such as my noble friend’s amendment envisages should be permitted to have the effect of removing from the British people or eroding their opportunity to have what they asked for with awful clarity—leave. Frankly, no huddled meeting in Smith Square should be permitted to kick the aspirations of the majority further down the road.

This great House should not, by supporting my noble friend, give those who wish to frustrate Brexit a blank cheque to write on. My own amendment is entirely without prejudice to whatever each of your Lordships may decide on the noble Viscount’s amendment. The real question is on his amendment. Do your Lordships, including noble Lords on the Cross Benches, want to be party to further games of “collapse the Government”, or do we accept, as I do, that the Government have in Motion F made a serious attempt to compromise on which the House of Commons should now be allowed to decide? For my part, I think that the Government have gone far and tried long to meet the concerns expressed in another place, in your Lordships’ House and outside—further, actually, and longer than some of us might wish. But the Government are to be commended for that, and I shall support them on their amendments.

I add one final thing. Look at the Marshalled List and the width and breadth of the amendment laid by the Government in line with Motion F. It is perfectly possible that that amendment from the Government goes back to the other place and perfectly possible for the other place to amend and offer an amendment in lieu. The matter can be decided. It is time for each and every one of us to be clear where we stand, and where we think this House of Lords should go. This House has gone a long way and made its voice heard; it has carried many of the arguments for the remainer cause. Do we wish to go on delaying, preventing and prevaricating when the Government have made the offer on the Marshalled List that we have today? Do we wish to be accessories before the fact in parliamentary games to delay resolution and weaken this country’s negotiating position for months and months ahead, or do we say, “My Lords, it’s time enough—let the Commons decide on the matter that the Government have put before us in lieu”? I beg to move.

[Lord Howard of Lympne (Con)]

My Lords, this is not a debate about the integrity of Mr Dominic Grieve, and I shall do my very best to avoid mentioning his name again. It is a debate on the terms of the amendments before your Lordships’ House this afternoon. My noble friend the Leader made a cogent and compelling case for the government amendments and I do not intend to elaborate on it at any length. She made it clear that the effect of the amendment in the name of my noble friend Lord Hailsham would be to confer on Parliament a negotiating power that has always resided in the hands of the Executive in our country. That is why, as my noble friend the Leader said, Professor Vernon Bogdanor has described the amendment as a “constitutional absurdity”. It is a measure of the weakness of the case put forward by my noble friend Lord Hailsham that he was driven, in the end, to impugn the validity of the Article 50 vote in the House of Commons—a vote passed by a very large majority in the very House whose cause he purports to champion as the basis of his amendment.

I want to elaborate briefly on a point just made by my noble friend Lord True. My noble friend Lord Hailsham said, at the very outset of his speech, that the purpose of his amendment was to give the House of Commons the opportunity to consider it. It is a simple and irrefutable fact that the House of Commons will have that opportunity without passing my noble friend’s amendment. The House of Commons will have that opportunity if the Government’s amendment is passed, because that amendment has not been considered by the other place. So, when the Government’s amendment comes to the other place, it will be open to them to accept it, reject it or amend it. They can amend it in the terms of the amendment put forward by my noble friend Lord Hailsham. The very purpose of his amendment—

[Baroness Smith of Basildon]

My Lords—

[Lord Howard of Lympne]

I will give way when I have finished my sentence. The very purpose of the amendment put forward by the noble Viscount can be achieved without its passing.

[Baroness Smith of Basildon]

I apologise to the noble Lord for interrupting, but I may be helpful on House of Commons procedure. If an amendment goes from this place to the House of Commons and is amended, the chances are that the only amendment that could be voted on is a government one. At the moment of interruption, only government amendments are voted on. Back-Bench amendments would not be voted on.

[Lord Howard of Lympne]

The operative phrase in the noble Baroness’s observation was “the chances are”. I believe that, if the House of Commons wished to consider the amendment in the terms put forward by the noble Viscount, it would be able to do so.

[Lord Cormack]

The noble Baroness was right. It should be desirable that the other place could do what my noble friend wants, but the rules of that House would preclude it.

[Lord Howard of Lympne]

I am afraid that I disagree with my noble friend. As we know, the Speaker of the House of Commons is very eager these days to allow all sorts of amendments to be put.

[Noble Lords]

Oh!

--- Later in debate ---

[Lord Howard of Lympne]

The noble Baroness said “the chances are”; that was the operative phrase in her remarks.

It is often said in our debates that the purpose of the amendment put forward is to give the other place the opportunity to think again. It is a powerful argument, which has influenced many of your Lordships in putting forward amendments and in voting for them. I submit that it is not necessary to defeat the Government to achieve that objective with these amendments.

I shall say one more thing before I sit down. Many of your Lordships—conspicuously not my noble friend Lord Hailsham—have vociferously denied any intention to delay Brexit. The amendment tabled by my noble friend Lord True gives effect to those denials. The only people who need have any concern about the effect of the amendment put forward by my noble friend are those who indeed desire to delay Brexit. I therefore congratulate my noble friend on his amendment, and should he wish to test the opinion of the House on it, I for one will vote in its favour. The one thing that should not happen is that a message goes out from this House that this unelected Chamber is determined to delay the implementation of the wishes of the British people.

[Lord Lamont of Lerwick (Con)]

My Lords, I support the Motion moved by the Minister and oppose that put forward in both versions by my noble friend. He spoke with enormous force and eloquence; he left very little for the day of judgment. I am going to have Sunday lunch with him in a few days’ time, and I shall make sure that I am at the other end of the room, at the other end of the table.

European Union (Withdrawal) Bill

Lord Howard of Lympne Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I have great respect for all the proposers of this amendment. It makes me all the more astonished that they should put forward a clause which could, and very probably would, lead to not one but several constitutional crises. I am reluctant to draw the conclusion that that is the purpose of the new clause, that that is the intention behind the new clause, that so determined are its movers to thwart the will of the British people to leave the European Union that they wish to provoke a constitutional crisis, but that is the perilous outcome to which this new clause opens the door.

My noble friend made a very fine speech, but the new clause which stands in his name goes far beyond the fine sentiments which he addressed. I shall concentrate on just two of its consequences. First, the new clause gives your Lordships’ House a veto on any agreement which the Government have reached and which the other place has endorsed. It is instructive to compare the wording of subsection (1)(b) of the new clause with subsection (3). We have not heard very much so far from the movers of the new clause about its precise terms, so it falls to me to draw your Lordships’ attention to those terms.

[Lord Hannay of Chiswick]

The noble Lord is giving us the speech he gave us in the Article 50 Bill, when it was indeed the case that the amendment then moved did not differentiate between the Lords and the Commons. If he looks at this amendment with care, he will see that there is a very clear differentiation and that it is only the Commons that has the right of decision; we have the right of consideration.

[Lord Howard of Lympne]

If the noble Lord waits until I have concluded my remarks, I think he will be better able to form a judgment about how careless I have been.

Subsection (1) of the new clause provides that the Government may conclude an agreement only if the draft has been approved by the House of the Commons and has been subject to the consideration of a Motion in your Lordships’ House. The Minister may have something to say about the circumstances in which such a Motion might be considered. It is not a point I intend to dwell on, although there is clearly a possibility that your Lordships may vote not to consider such a Motion.

Subsection (3) of the new clause provides that a withdrawal agreement may be implemented only if it has been approved by an Act of Parliament, and subsection (7) provides that that Act must have received Royal Assent by the end of next January, so the new clause expressly contemplates a situation in which the Government have reached an agreement with the European Union, the House of Commons has approved that agreement, but your Lordships’ House, simply by delaying the passage of the Bill beyond next January, could defy not only the will of the people but the will of the elected Chamber of Parliament. If that would not provide a constitutional crisis, I do not know what would.

The new clause goes on to provide a prescription about what would happen if such a situation were to arise. It proposes that the negotiations should be taken out of the hands of the elected Government of our country and be decided on a resolution of the other place and the consideration of a Motion in your Lordships’ House. I had the great privilege of serving in the other place for 27 years—not quite as long as my noble friend, but almost—and I have the greatest respect for it, but it is not a negotiating body. I do not believe it has ever taken that role upon itself, I do not believe it wants it and nor should it have it. I need hardly add that if this new clause were to become law, the situation would arise that it would immeasurably weaken the Government’s negotiating position with the EU and would make our Government and our country a laughing stock.

The truth of the matter is that, while a great deal has been spoken about the House of Commons—my noble friend talked about the House of Commons—at the end of the day the House of Commons will have its say and the House of Commons will have its way. The House of Commons does not need to be given any guidance by your Lordships’ House as to how it should go about its business. There are many ways in which the House of Commons can achieve that objective, and the House of Commons will do so.

This new clause is thoroughly and fundamentally misconceived. I am afraid that it illustrates the appalling lengths to which die-hard remainers are prepared to go to achieve their aim, and I urge your Lordships to reject it.

[Lord Bilimoria (CB)]

My Lords, as an answer to what the noble Lord, Lord Howard, has just said, the noble Viscount, Lord Hailsham, said in moving the amendment that this was all about “Take it or leave it”. Is “Take it or leave it” a meaningful vote? Throughout Committee, the main answer given by the Government was, “We are implementing and executing the will of the people”, while every single day the press says, “Implement the will of those 17.4 million people”. But, as the noble Viscount said, “Leave, whatever the terms”—is that what the people actually said? Is that what is in the national interest?

At the heart of this issue is the fact that in the other place at the time of the referendum two-thirds of MPs, on all estimates, thought that the best thing for this country would be to remain, and right here in this House about 75% thought the same. Yet when the referendum took place, hundreds of those MPs’ constituencies voted to leave, so the MPs are caught in a trap. The confusion is whether they see themselves as delegates or representatives of their constituencies. Are they making these decisions in the best interests of their constituents and country or of their party? Are they managers or leaders? The difference between a manager and a leader is that a manager does things right but a leader does the right thing. Do they have the guts—the guts of the so-called mutineers such as Nicky Morgan, Ken Clarke, Dominic Grieve, Jonathan Djanogly and Tom Tugendhat, and I could go on—to stand up when the time comes to do the right thing?

We discovered in Committee that whether we were discussing borders, education or movement of people, no argument was made. The Government were like a stuck record, simply saying: “The will of the people”. The amendment would give MPs in the other place and this House the power to stand up to do the right thing for the country. The noble Lord, Lord Howard, talked about a constitutional crisis. What constitution do we have where a Government bully Parliament and say, “Take it or leave it”? It is Parliament that should be supreme, in the best interests of the people and the country. Thanks to this amendment, Parliament would have the ability to stop the train crash that is Brexit.

--- Later in debate ---

It seems to me that the amendment must be rejected. It gives extraordinary powers to Parliament, and it would make the negotiation much more difficult. Most ironically of all, given that the other side is terrified that there will be no deal, this would make no deal highly likely.

[Lord Howard of Lympne]

I am grateful to my noble friend for giving way—

[The Countess of Mar (CB)]

It is Report.

[Lord Howard of Lympne]

It is a question, and my noble friend has not finished.

[Lord Roberts of Llandudno (LD)]

Are we learning the lessons of history? Sometimes it is very valuable to see what has happened in other countries when similar steps have been taken. We remember the reluctance of Mrs May to allow Parliament to be involved. She wanted the Government to be in charge. My mind went back to Berlin in March 1933 when the enabling Bill was passed in the Reichstag, which transferred the democratic right from the Parliament into the hands of one man—that was the Chancellor, and his name was Adolf Hitler. Perhaps I am seeing threats that do not exist, but they are possible. Who would have thought before the 1930s that Germany, such a cultured country, would involve itself in such a terrible war?

Let us take the warning. What we are doing here must involve Parliament. I would like to see it involving the people as well, but it must certainly be in other hands. We cannot let an enabling Act of the United Kingdom possibly lead to the catastrophe that took place in Berlin in 1933.

European Union (Notification of Withdrawal) Bill

Lord Howard of Lympne Excerpts

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

[Lord Pannick]

As I have said, this is the Prime Minister’s undertaking, but since the noble Lord has asked me—I do not have to tell him this, given his enormous experience—if the House of Commons were to give its approval, this House would, in my judgment, rightly be told that it should be very slow indeed to take a different view from the elected House. If we were to disagree with the Commons, I understand that it would be open to the Government immediately to take the matter back to the Commons for a further confirmatory resolution, which, if agreed, would lead to a further approval Motion in this House. I expect, at that stage, it would be exceptionally unlikely that this House would stand its ground. I repeat, however, that if the Government were dissatisfied with that, which is the consequence of the undertaking given by the Prime Minister, it is open to the Government to bring forward an amendment in the other place. Indeed, it was open to the Government in this House to bring forward an amendment to this amendment to deal with the matter.

[Lord Howard of Lympne (Con)]

I am grateful to the noble Lord for giving way. He says that it is “exceptionally unlikely” that this House would insist in those circumstances on having its way, but that falls some way short of dealing with the point raised by the noble Lord opposite. Does the noble Lord not agree that this proposed new clause, in effect, gives this House a statutory veto on the decision made by the Prime Minister with the support of the other place to implement the decision of the British people to leave the European Union?

--- Later in debate ---

[Lord Higgins]

My Lords—

[Lord Howard of Lympne]

My Lords, it is a great pleasure to follow the noble Lord, Lord Grocott, and I agree with much of what he said—

[Noble Lords]

Order!

--- Later in debate ---

[Lord Taylor of Holbeach]

Yes, indeed. I will let my noble friend Lord Higgins speak next and include my noble friend Lady Altmann in the list to speak later.

[Lord Howard of Lympne]

I am grateful to my noble friend. I long ago came to the painful recognition that many Members of your Lordships’ House think that to serve in this place without having served down the Corridor in the other place is an absolutely enormous advantage. Therefore, it is with some temerity that I seek to draw on my 27 years’ experience in the other place—not as long as my noble friend Lord Heseltine—to make a preliminary observation. At the end of the negotiations, there will be either an agreement or a decision by the Government to leave the European Union without an agreement. Whichever of those scenarios comes about, the other place will have its say. Not only will it have its say, it will have its way. If the agreement that is reached by the Government is unacceptable to a majority of the Members of the House of Commons, they will vote accordingly. If the Government propose to leave the European Union on terms which are unacceptable to a majority of the Members of the House of Commons, they will vote accordingly. They do not need the authority of Mr David Jones to do that. They do not even need the authority of my right honourable friend the Prime Minister to do that, and they certainly do not need this proposed new clause to do that. They do not need any authority to do that. They will have their say. They will have their way. For those of us who believe that parliamentary supremacy rests with the House of Commons, that is the ultimate safeguard.

I make a couple of observations about the proposed new clause. In the end, the noble Lord, Lord Pannick, admitted—not quite explicitly but in effect—that, in its present form at any rate, it provides a veto for your Lordships’ House. He said that it was extremely unlikely that your Lordships would exercise that veto. In the end, he was obliged to accept a lifeline from my noble friend Lord Hailsham. However, as is so often the case when you examine a lifeline in detail, it proves not to be quite as effective as at first sight it appeared. The lifeline offered by my noble friend was that the Government might enshrine the Motions necessary by virtue of the proposed new clause in an Act of Parliament so that the Parliament Act could be activated. I ask your Lordships to consider that situation. The Government will have agreed the terms on which they are going to leave the European Union. The House of Commons will have approved those terms but this House will have rejected them and we will have to hang around for a year until the Parliament Act can be used to ensure that the House of Commons gets its way. That was suggested by my noble friend Lord Hailsham. Even my noble friend Lord Heseltine acknowledged the need for the minimum of delay. We all want the minimum of delay. The notion that the nation should stand around for a year waiting for the Parliament Act to be invoked for the House of Commons to get its way illustrates how unnecessary this amendment and proposed new clause are.

European Union (Notification of Withdrawal) Bill

Lord Howard of Lympne Excerpts

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

[Lord Howard of Lympne (Con)]

My Lords, it is a pleasure to follow the noble Baroness, but I do not know what evidence she has for her assertion that the Government intend to use this issue as a negotiating encounter for wider issues once the negotiations start. On the contrary, at the end of last year the Prime Minister made an attempt to resolve this issue in advance of the negotiations on a reciprocal basis, but that was rejected out of hand by Chancellor Merkel and President Tusk on the grounds that no discussion of this issue could take place until Article 50 was invoked.

My noble friend Lord Hailsham, in his extremely eloquent speech, launched a great deal of obloquy on the legislation that would be necessary to deprive EU nationals of their rights. I agree with him, but that legislation is not before your Lordships’ House this afternoon. The question that your Lordships have to decide this afternoon is what action to take in the light of the truth—perhaps unpalatable to many of your Lordships, and unpalatable to me, because I have made it clear on numerous occasions that I actually favour a unilateral guarantee and think that that is what the Government should give—that the Government are not going to change their mind and that the other place, where this issue was raised, considered, voted upon and resolved by a majority of 42, is not going to change its mind either.

[Noble Lords]

Oh!

[Lord Howard of Lympne]

There are murmurs from the Benches opposite, but there are no new facts in this debate. This is an issue that is essentially simple. The arguments have been gone through in the other place; there are no new facts. The noble Baroness, Lady Hayter, criticised the Home Secretary for saying what she said in advance of the arguments, but we know what the arguments are. There are no new arguments on this issue.

[Lord Richard (Lab)]

A slight thought went through my mind as the noble Lord told us what will happen in the House of Commons: “If that is so, what is the point of the House of Lords?”.

[Lord Howard of Lympne]

There are many occasions when this House can bring forward new arguments and a fresh perspective on a situation, and genuinely make the other place think again. I do not believe that this is one of them. The question we must ask ourselves today is: how can we best help the EU nationals resident in this country? The best way is to bring the uncertainty of their position to an end as quickly as possible and the best way to do that is to pass the Bill and activate Article 50 as quickly as possible.

[Lord Hannay of Chiswick (CB)]

My Lords, on the issue of new facts, does the noble Lord agree that one new fact is the communication from all the expatriate groups across the European Union that they wish the House to pass this amendment because they believe it is the best way to secure their position?

[Lord Howard of Lympne]

I am sure many of those groups made their views known when the matter was debated in the other place. Though of course their views need to be taken into account, I do not see that as tantamount to a new fact.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, during this debate, which may be lengthy, it would be helpful for those of us sitting listening if speakers from the Conservative group of Peers did not refer to the Opposition raising objections when objections are being raised all around the Committee. That will not do any good to the image of the House.

[Lord Howard of Lympne]

My Lords, I do not think I ever referred to the Opposition raising objections. The noble Baroness uttered a legitimate rebuke but I do not think it needed to be directed at me on this occasion.

[Lord Cormack (Con)]

I entirely endorse what my noble friend said when he replied to the last interjection. However, he told the House a few moments ago that he was a unilateralist on this issue. The whole theme of the remain campaign, of which he was a distinguished leader, was taking back control. Why can we not have a unilateral gesture before the negotiations begin, seize what my noble friend Lord Hailsham called the moral high ground and make a declaration?

[Lord Howard of Lympne]

My Lords, we could but the Government decided not to. I wish we would. I would like the Government to take that view but they decided not to. I believe that this House needs to face—

[Lord Winston (Lab)]

The noble Lord, Lord Howard, has made one major assertion repeatedly: he kept saying that there are no new facts. There are new facts and they are really important to the British economy. The Government made it clear that science and technology is one way in which we will lead. Yet we are bleeding the best academics from this country at present. They are leaving one by one, or thinking about leaving, because they do not see themselves having a future in this country. That is urgent. It needs to be dealt with now.

--- Later in debate ---

[Lord Howard of Lympne]

My Lords, the debate in the other place was very recent. That fact, along with the others, was well known to those in the other place. With great respect, it is not a new fact. Clearly, many will disagree with me most profoundly but I believe that these amendments will work against the best interests of those they are designed to help. The best way to help them is to pass this legislation as quickly as possible, activate Article 50 and then negotiate to give these people the rights they deserve to stay in our country.

[Lord Bragg (Lab)]

My Lords, 3 million foreign nationals in a population of about 65 million represents a minority. This country has benefited greatly from minorities for centuries. Sometimes they are minorities of a people fleeing tyranny; most markedly in the middle of the last century, the Jews came to this country and enriched it immeasurably. Sometimes they are minorities who fight for the rights of their religion, such as the Roman Catholics and Unitarians over the past couple of centuries; or for their own rights, such as votes for women; or for the rights of others, such as the magnificent vote in the other place a couple of centuries ago that abolished the slave trade. Again and again, minorities have helped us become the best of what we are, as do the minorities here today in the 3 million we are treating so shamefully. From my own experience and that of others in your Lordships’ House, I can point to the dazzling contribution of minorities across the arts, the sciences and the widest spectrum of our cultural and intellectual life.

I speak strongly for minorities because I am a member of one—a bullied and beleaguered minority whose views have been dismissed and effectively gagged. I, like the Prime Minister, voted to remain. We have become a minority. I am rather surprised that with her pride in her sovereign intransigence, she did not stay on to lead the 48%—

--- Later in debate ---

[Lord Wigley]

My Lords, I support Amendment 17, moved by the noble Lord, Lord Pannick, which is linked to Amendment 35, standing in my name. Amendment 17 is critically important. If there is no clarity tonight, we should certainly return to this subject on Report next week.

In fact, the amendment arose from the end of one of the banks of debates on Monday night, when I asked the Minister—this is in Hansard, col. 641—what will happen if, at the end of the negotiations, we reach a position where both Houses of Parliament refuse to endorse the basis for Brexit recommended by the Government. Will the Government accept the decision of Parliament as binding or will they under those circumstances allow the voters to decide, either by general election or further referendum? The Minister refused to respond or give any indication of the Government’s intentions. He now has a chance to make clear beyond doubt the Government’s position, which the House has the right to know. The best way to achieve this would be to accept Amendment 17 or, if that cannot be carried, by insisting on Amendment 35 which provides that if the UK Government fail to reach agreement, the status quo would remain in force.

[Lord Howard of Lympne]

My Lords, I oppose this amendment on grounds that are rather different from those advanced by my noble friend. I submit that this amendment is wrong in principle, constitutionally improper and unnecessary. Your Lordships might think that given that it was proposed by the noble Lord, Lord Pannick, I am being rather courageous and perhaps foolhardy in suggesting that it is constitutionally improper but I hope to explain to your Lordships why I take that view.

My view is based in particular on subsection (4) of the new clause. That would make possible—indeed it encourages—a never-ending situation in which the Government reach an agreement with the European Union and brings it to Parliament, Parliament rejects it, sends the Government back to the European Union, the Government come back to Parliament and Parliament rejects it again. The only way that process can be ended is by the Government having the power to bring the negotiations to an end. What would happen if the process envisaged by subsection (4) were to take place is the intrusion of Parliament into the negotiating process. That is why I say this amendment is constitutionally improper.

[Lord Kerr of Kinlochard]

I wonder if the noble Lord is familiar with Article 50, where it is clear that if no agreement is reached within the two-year period the state that intimated its intention to withdraw, if it has not withdrawn that intimation, leaves the European Union at the end of those two years. The idea of the never-ending negotiation is a fantasy. The article is completely clear.

[Lord Howard of Lympne]

It is hardly a fantasy if the negotiations are brought to an end speedily, as we all hope they will be. If they are brought to an end six months before the end of the two-year period, the process I identified as being made possible by new subsection (4) could well take place. Parliament should not intrude itself into negotiations. It is not the job of Parliament to negotiate. That may seem self-evident but since this amendment was moved by the noble Lord, Lord Pannick, I thought I had better look for some authority for the proposition I am advancing and went to the supreme authority on these matters— I went to Dicey. Dicey says that Parliament,

“should neither directly nor indirectly take part in negotiating treaties with foreign powers”.

That is what subsection (4) of this amendment would make possible, which is why I suggest that it is constitutionally improper.

[Lord Tyler (LD)]

I do not think that the noble Lord has followed the process of the Constitutional Reform and Governance Act 2010, which specifically gives both Houses of Parliament a role in the ratification of treaties. That completely updates where Dicey got to.

[Lord Howard of Lympne]

I am afraid that it is the noble Lord who misunderstands the position. I am not disputing the role of Parliament in ratifying an agreement. That is perfectly proper, but that is different from Parliament refusing the ability of the Government to terminate the negotiations. That is what intrudes Parliament into the negotiations and that is why, in my view, the amendment is constitutionally improper.

The amendment is also unnecessary, for one very simple reason. If at the end of the negotiations—I devoutly hope that this will not occur; I do not believe that it will occur; I do not think that there is much chance of it occurring—the Government find themselves completely at odds with Parliament, in particular with the other place, it is always open to the other place to pass a Motion of no confidence in the Government. Clearly, that would bring matters to a head and perhaps achieve the result that the noble Lord, Lord Pannick, seeks to achieve. Parliament is always supreme in that respect. Parliament can always pass a vote of no confidence in Her Majesty’s Government.

[Lord Pannick]

If all this is unnecessary, why was the Prime Minister asked for, and why did she give, a specific undertaking that this matter will be brought before both Houses of Parliament at the end of the process? Surely that shows that in relation to this vital constitutional issue it is not enough to rely on the possibility of the House of Commons exerting its power and, if an undertaking is given, why is it not in the Bill?

[Lord Howard of Lympne]

I think that I have already answered that question. I quite accept, as I said to the noble Lord, that it is proper for Parliament to ratify an agreement that has been reached—or, indeed, reject it. That is what Parliament’s role should be. That is in accordance with what the Prime Minister has said. What I am objecting to is subsection (4) of the proposed new clause, which could have the effect that I have identified and would lead to an extremely unsatisfactory and unconstitutional position.

[Lord Hannay of Chiswick]

Has the noble Lord given proper consideration to a circumstance in which the Prime Minister and the Government wish to throw in the towel in the negotiation? It cannot possibly be ruled out because, as I understand it, his right honourable friend the Minister responsible for Brexit has just told the Cabinet that it might well happen. So why on earth is it wrong to put in the Bill that Parliament should have the right to say yes or no to such a decision?

[Lord Howard of Lympne]

Well, for all the reasons that I have given. I do not want to repeat my speech to the noble Lord. The effect of the proposed new clause, the effect of giving Parliament the ability to say, “You cannot bring the negotiations to an end”—not just once, but twice or three times, or four times or any number of times; that is all in the proposed new clause—is to intrude Parliament into the negotiating process. It is wrong, it is improper and it should not be in the Bill.

[Lord Oates]

My Lords, I support Amendment 17. Given the late hour and the clarity of the points made by the noble Lord, Lord Pannick, in moving the amendment, I will not detain your Lordships for too long, although I must say that the noble Lord, Lord Howard, has shown very little faith in the sense of Parliament, which slightly surprises me, from the side of the argument that has stressed parliamentary sovereignty so much.

At Second Reading I expressed my concern that the Bill, unless amended, would provide a blank cheque to the Prime Minister to negotiate an exit deal on any terms whatever or, indeed, to return with no deal at all. The Government intend that at that point—when the PM returns with a deal or no deal at all—both Houses of Parliament will be given a vote. The Prime Minister made that pledge in her Lancaster House speech. Effectively, Parliament would be given a choice of the deal or not the deal. But I think that noble Lords do not have faith in the Government, given some of the undertakings that they have made in the past, not least, as was mentioned in an earlier debate, in relation to the noble Lord, Lord Dubs.

We want something more secure in the Bill. The purpose of the amendment, as the noble Lord, Lord Pannick, has pointed out, is to ensure that both Houses of Parliament are able to have a meaningful say once the final draft of the proposed arrangements for withdrawal from the European Union is produced and that this must be before the proposed arrangements are agreed with the European Council. As we have heard, it would also prevent the Government from terminating negotiations for withdrawal from the European Union without the express consent of both Houses of Parliament. In short, the amendment will ensure that with regard to the most—