European Union (Withdrawal) Bill

Lord Howarth of Newport Excerpts

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

[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.

[Lord Howarth of Newport (Lab)]

My Lords, the noble Lord, Lord Howard of Lympne, is absolutely right to draw our attention to the constitutional dangers that lurk within the amendment. It goes too far to bind the Government.

I think it is time that we drew breath. We have had a very exciting couple of weeks but it is time to think about the respective roles of the Executive and Parliament and of the House of Commons and the House of Lords, as other noble Lords who have spoken have done. Parliament is not the Government and it should not try to usurp their role. Of course the Government emanate from Parliament and are accountable to it, the Government should be advised by Parliament and are invigilated and sustained by it, and if they lose the confidence of Parliament then they fall, but the Government are not the same as Parliament and Parliament is not the same as the Government. We have a separation of powers. The Government are the Executive, and Parliament neither can nor should act as the Executive.

It was improper and inept for the Government ever to suppose that they could bypass Parliament in dealing with Brexit. Of course there must be a meaningful vote, but it is for the Government to negotiate, listening all the time to Parliament—Parliament constantly proffers its advice—and then eventually to submit the deal that they have negotiated to Parliament for its approval or otherwise. You can call it a take-it-or-leave-it vote, but nobody could say that that is not a meaningful vote.

Dominic Grieve, someone for whom I have the greatest respect and the warmest regard, justified his amendment to Clause 9, requiring that the final terms of the deal should be approved by a statute, on the basis that it was essential to prevent the Government exercising the biggest Henry VIII power ever. That was an understandable and legitimate motive, but to require that the deal should be approved by the laborious process of statute seems to me to go too far in an inappropriate direction. Parliament cannot negotiate. Parliament certainly cannot negotiate by legislation or amendment. It cannot change the deal, it cannot bind the European Union. It can bind the Government in an excessively narrow straitjacket, and that would be an extraordinarily unhelpful thing to do in the national interest. The process of legislating such a statute would serve only to prolong the uncertainty about which everyone complains.

Amendment 49 would develop the Grieve amendment and take it further. It repeats the requirement for a statute already in Clause 9, but doubles up with the requirement for a resolution. It then goes further. Proposed new subsection (5) states that if the House of Commons does not approve the draft terms, the Government “must follow any direction” given by the House of Commons. That seems to me the most extraordinary provision. Of course, legislation routinely binds Governments for the future, but it does not tie their negotiating hand. It should not, specifically, tie this Government’s hands as they seek to perform this particular complex, sensitive, immensely difficult, crucial set of negotiations.

The resolution could say anything. It could say, “Go back to the negotiating table”. It could stipulate that the Government deliver what is undeliverable. It could rescind Article 50. It could call for a general election or another referendum. These are exceedingly important matters where the Government should listen to Parliament, but the Government should lead and Parliament should respond.

If we reflect on the relationship between your Lordships’ House and the House of Commons and our respective responsibilities, surely it is our responsibility to advise the House of Commons, to advise the Government. In the words of the noble Viscount, Lord Hailsham, it is to suggest, to argue, to explain. It is no part of this House’s responsibility to seek to manipulate the House of Commons or the Government, to seek to choreograph future proceedings of the House of Commons, and certainly no part of our responsibility effectively to pull the rug from under the Government.

If we pass this amendment and some of the others on the Marshalled List today, I fear that we shall be getting too big for our constitutional boots, and many of our fellow countrymen feel the same.

[Lord Lamont of Lerwick (Con)]

My Lords, my noble friend Lord Hailsham made an eloquent and powerful speech. If I had closed my eyes, I might have thought I was listening to his father. However, despite his eloquence, he did not go very deeply into the detail of his amendment. I wish to support what the noble Lord, Lord Howarth, and my noble friend Lord Howard said.

The first part of the amendment, proposed new subsections (1) to (3), it might be argued, roughly and broadly mirror what the Government themselves have outlined: a resolution in the House of Commons, the withdrawal Bill, primary legislation and trying to get a vote before the European Parliament has voted. But my noble friend Lord Hailsham then inserts a series of triggers with rigid dates. If the vote of approval has not taken place by 30 November, if the Act of Parliament has not received Royal Assent by 31 January, and if the withdrawal agreement has not been agreed by 28 February, a whole lot of things happen. As the noble Lord, Lord Howarth, highlighted, what happens is that the House of Commons or Parliament effectively takes over negotiations and can impose conditions. This is a most extraordinary thing. It has never been the case before that Parliament has dictated how a Government should negotiate a treaty, but this is what would happen under the provisions of the amendment. As the noble Lord, Lord Howarth, said, Parliament could dictate all sorts of things: it might dictate that the Article 50 notice be withdrawn or it might dictate, although it would perhaps be subject to dispute, that Article 50 was extendable. This would be for Parliament to assume extraordinary powers in a way that has never happened before. It would be a major constitutional innovation.

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[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I abstained on the last vote because I thought that many of the arguments against that amendment were very powerful and it was, in many ways, a defective amendment. However, I strongly support this amendment. I have no such doubts. I support it even though I readily recognise that it is entirely possible—many people think, highly likely—that in a further referendum, the vote would again be in favour of leaving. This time, I suggest there is much to be said for making the next referendum, unlike the first, legally binding, with no question of “neverendums”.

Of course, the public have already voted, and certainly that vote—although not legally binding—made it imperative that we give an Article 50 notification. We have done that and continue to explore what terms for leaving the EU are available to us. The public cannot yet vote on those available terms, but why should they not eventually be allowed to do so? Surely not even the most fervent Brexiteer would argue that a further referendum would not present the public with an altogether clearer, and better informed, choice than last time. Why would that not be properly regarded as giving them a further choice and further respecting, rather than betraying, the earlier expression of the popular will?

I have struck out a great deal from what I was intending to say because much of it has already been said by others. However, I should deal with one further point. An argument, which I confess initially troubled me against a further referendum, is this: because the other 27 countries would prefer us to remain, as I think most people believe, if there is a further referendum, they will make the terms of leaving as unattractive as possible to maximise the chance of the public rejecting the deal on a further vote. So, it is said, a commitment to a further referendum would compromise our negotiating position. But I have concluded that, ultimately, that is a completely unreal objection.

In the first place, given that a further vote could very well still, as I say, be to leave, and that if, finally, we were to do so, then it is patently in the interests of all the EU states that we leave on mutually beneficial terms. I do not believe that the proposal of a further referendum would, in truth, worsen those terms. But put that thought aside. The plain fact is that, in any event, there is an obvious and powerful reason why the remaining 27 will not wish to allow us too favourable a deal—namely their concern to discourage from leaving any other state which is possibly inclined to exit the Union as we now propose.

One other point I will touch on is that made by my noble friend Lord Green of Deddington. I am not sure that the noble Lord, Lord Butler, quite appreciated it. What I think my noble friend Lord Green said is: how do we know that we will not, if we vote to remain, lose the rebate and our right not to be within euroland? The noble Lord, Lord Kerr, has made it plain—there is nobody better able to do this—that, in his view, a right to withdraw our notification must inevitably leave us in the same position as we started in. I support that view too. Again, given that the other 27 would want the vote to be to remain, I think that they would readily make that clear.

In short, the case for the public to have the final vote on this really most momentous of issues, perhaps in many of our lifetimes, now seems to be overwhelming and I urge your Lordships to support it.

[Lord Howarth of Newport]

My Lords, this amendment is reckless. It is peculiarly reckless proposed in an unelected House. It would be reckless if it were to be entertained by the elected House. The 2016 referendum generated bitter divisions in our country. To rub salt in those wounds and fan the flames of that anger by offering this option, raising hopes of a further referendum, seems to be most unwise. My noble friend Lord Adonis, in his Hitchcockian script, truly made my flesh creep.

The 2016 referendum exposed depths of mistrust and resentment against the political establishment and against what has broadly been the policy orthodoxy of recent decades. The appropriate response to that, surely—even if you deeply disagree with the view that was taken by the majority then, even if you consider that people were voting against their own best interests—is not to say, “You are stupid, bigoted and ignorant. You are wrong. You should think again and get it right”. That is how it will be perceived.

[Noble Lords]

No!

[Lord Howarth of Newport]

Yes, it will. Rather, we should seek to understand the nature of this public discontent and the depths of this anger and offer something better. I give way to my noble friend.

[Lord Winston (Lab)]

I am grateful to my noble friend for giving way. Would he not concede that the political resentment against political figures occurred before the referendum rather than afterwards?

[Lord Howarth of Newport]

Indeed it did, and what we saw in the vote at the referendum was an extremely disturbing expression of that. As I say, we should not fan those flames.

In any case, there is no sign that those who voted to leave have changed their minds. A recent ComRes poll, which took a rather larger sample than the occupants of the Electric Ballroom in Camden, found that 68% think that remainers should show respect for the majority for leave, and that we should get on with it and end the uncertainty. Instead of which, however, there is a proposal for a big campaign in support of a second referendum. That would be a bad use of time, energy and money.

I believe that the result would be the same because the European Union is unreformed. It remains in relative economic decline. It is undemocratic in its processes and it has completely failed to grip the problem of migration. There is deep popular discontent still with the EU. The only proposal for reform that is around is that of President Macron for deeper integration. In the unlikely event that that comes to pass, the UK would find itself even more marginalised.

[Lord Hamilton of Epsom]

Does the noble Lord think that dissatisfaction with the EU has grown greater since the stance it has taken on the negotiations?

[Lord Howarth of Newport]

There is a great deal of national grumpiness, and when the British people get grumpy, they are a force to be reckoned with. The dispossessed rejected the status quo and were unimpressed by Project Fear, and my advice to my noble friends is to stop digging.

The false simplifications, the distortions and the mendacities on both sides in the referendum campaign were a degradation of our politics. I believe that the nation’s heart would sink at the thought of another bout of all of that. The second referendum would inevitably intensify the divisions and the bitterness of the first one. There would, I fear, be ugly episodes. The losers would demand a third referendum, whatever the noble Lords, Lord Newby and Lord Wigley, say.

We are not immune in this country to the neo-fascism that has so deeply, disturbingly possessed swathes of central and eastern Europe. We are fortunate that the most sinister figure to present himself as a leader of the far right in this country was Nigel Farage. If we were to have a second referendum, I greatly fear that a far more charismatic and sinister leader might emerge on the far right.

In any case, referendums are alien to our constitution, and the issues that would fall to be decided at a referendum, if and when the people were asked to judge the terms of the deal the Government had negotiated, would be immensely complex technical issues about trade, financial services, immigration, security, environmental protection and so forth. These complex issues should be determined by indirect democracy, by the intricate processes of parliamentary government, not by the crude instrument of a plebiscite.

I am always a little unsure of myself when I find myself disagreeing with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, because I have huge respect for his judgment. He calls for one last referendum. But the Constitutional Committee of your Lordships’ House advised us that referendums should occur only rarely, but were appropriate when a major constitutional issue needed to be decided. That is what happened in 2016. There was a referendum on the great constitutional issue of whether we should leave the European Union and reclaim the sovereignty that we had lent to it. That great constitutional issue has been decided. Strictly, of course, as noble Lords have mentioned, in legal terms that particular referendum was advisory, but politically it was binding.

Noble Lords may recollect this document. The Government sent it to every household in the country. It was sent to 27 million households and cost £9.3 million of taxpayers’ money. In it the Government said:

“The referendum on Thursday, 23 June is your chance to decide if we should remain in or leave the European Union … This is your decision. The government will implement what you decide”.


We have to live with the results of our democratic choices. If Parliament and the Government were to renege on the commitment made by the Government in that document, I believe there would be a very serious crisis in our country.

Great political turning points in the national life are inevitably uncomfortable for the establishment. The political genius of the British establishment has hitherto been to accommodate itself, however reluctantly, to big, uncomfortable changes: Catholic emancipation, the Great Reform Act 1832, repeal of the Corn Laws, death duties, reform of the House of Lords in 1911, the welfare state and the loss of empire. The latest such challenge is leaving the European Union. Your Lordships’ House and the people who take the big decisions in government and public administration on behalf of the people should now be similarly prudent, constructive and magnanimous. We should not waste our energy in seeking to overthrow the democratic decision of the British people to leave a European Union that is discredited in the eyes of the majority and perceived as failing because of mass youth unemployment, deep inequalities and its undemocratic nature.

It is for the left to rediscover the generous patriotism of JB Priestley and George Orwell. Agitating for a second referendum is displacement activity. The real challenge is to revive the centre left and to get beyond the intellectual and political bankruptcy of social democracy in the period since 2008 and the global financial crisis. But if all the centre can now offer, 10 years after that moment, is to remain in Europe, voters will say, “These politicians don’t understand us, they don’t respect us and they have nothing useful to offer us”, and they will move to the extremes. If the respectable politicians do not engage with voters on these matters of the deepest possible concern then disreputable politicians will take our place. I heard a former Commissioner of the European Union on the “Today” programme criticise his former colleagues, saying that those in Brussels tend to live in something of a bubble. I hope that will not be said of your Lordships’ House.

[Lord Faulks (Con)]

My Lords, I will not go into the virtues of remaining in the European Union or leaving it, but simply concentrate on the amendment. I was one of the Minsters who had the privilege of taking the referendum Bill through your Lordships’ House. As many noble Lords will recall, there were debates about the extent of the franchise, among other matters, but there was no suggestion by any of the major parties of a threshold, let alone a second referendum. One can only imagine the response there would have been following the results if it had been the other way around and there was an attempt then to have a further referendum—surely what is sauce for the goose.

It must be remembered that the Bill went through Parliament when a general election was looming. Any party, or combination of parties, could have formed the next Government. Surely it was incumbent on each party to make clear that it would not honour the result of the referendum without a further vote or the option of one.

There are a number of uncertainties about the amendment. Can we revoke the notification of withdrawal under Article 50? I know that the noble Lord, Lord Kerr, says that we can, but, with the greatest respect to him—I really mean that—that is ultimately a matter that could be determined only by the European Court of Justice in Luxembourg. We cannot predict with any certainty what the outcome might be. Similarly, we do not know whether we would be able to seek an extension of the Article 50 period, which is also a necessary part of the amendment as provided by proposed new subsection (3), although I know the noble Lord, Lord Newby, has had some secret soundings. But the whole premise of the amendment is legal uncertainty—precisely the opposite of what the Bill is intended to achieve.

There is yet another unsatisfactory aspect to the amendment. If a further referendum were held, it would give two options: acceptance or revocation of the notification of withdrawal, which would lead to our remaining in the EU should there be agreement by all parties or—this is uncertain—the ECJ rules that we are entitled to revoke unilaterally, notwithstanding the objection of any or all of the other 27. But what about the option in the event of a referendum that we should leave the EU without a concluded agreement? This is the no deal scenario. I—and, I suspect, most of your Lordships’ House—would much prefer that we did not leave without a concluded agreement, but there must surely be an opportunity for those voting in this referendum, having been informed by the lengthy and highly publicised process of negotiations between the Government and the EU, to conclude that they do not wish to remain in the EU and nor do they want to accept the deal that has been concluded. The proposed referendum in the amendment precludes that option.

If Parliament now denies voters a chance to leave the EU, except on onerous terms imposed by a combination of parliamentary fetters and/or unreasonable conduct from the EU, surely we should not deny the people the chance to leave without a deal. That would be treating people with contempt, and would be inconsistent with the EU referendum Act passed by both Houses of Parliament and what was or was not said by all the parties when the Bill went through Parliament. I do not need to elaborate on how divisive a further referendum would be—the first one was quite divisive enough.

Finally, is it not time that the Labour Party made clear what its approach to a second referendum is? If it thinks that voters should have an opportunity to think again, should it not say so rather than hover waiting for some political advantage?

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[Baroness Wheatcroft]

My Lords, Parliament needs to know what the Government are trying to achieve in their negotiations. The original vision of having the benefits of EU membership without any of the perceived downsides has evaporated. For the second time this afternoon, I shall quote Sir John Major, for I can put it no better than he did. He said that,

“every one of the Brexit promises is—to quote Henry Fielding—‘a very wholesome and comfortable doctrine to which (there is) but one objection: namely, that it is not true’”.

If “cake and eat it” is off the menu, what is it that the Government are aiming to achieve in our future relationship with the EU? This amendment seeks to give Parliament some say in what the future relationship would look like before it is too late.

We will no doubt be told that it is foolish to try to tie the hands of the Government in their negotiations—but the noble Lord, Lord Monks, has more experience than most of conducting negotiations, and he convincingly introduced this amendment. My experience comes from the other side of the negotiating table, but it leads to the same conclusion: being able to say “my members” or “my board” or “my Parliament” would never accept such and such strengthens rather than weakens the hand of the negotiators. It would surely help the Government to have some idea of where the red lines are as far as Parliament and the House of Commons, in particular, are concerned.

This afternoon the Minister once more made very clear that the Government would like to deprive Parliament of a meaningful vote on whatever deal or no deal they negotiate. This House has demonstrated its objection to that, and I believe that the Commons will uphold that vote. Our system of democracy demands that Parliament should take back control of the Brexit process. Insisting on a meaningful vote is progress. This amendment goes one step further. It endeavours to give Parliament an input into the shape of the deal. We are led to believe that there are differing views within the Cabinet on whether the UK should have a customs partnership with the EU. But if there is a majority of MPs who insist on a customs partnership, would it not make sense for the Government to be aware of that while there was still a chance of negotiating it? If a majority of MPs believe that the country needs to be in the equivalent of the single market of the 27, would it not be sensible to establish that sooner rather than later? It sometimes seems that the only mandate in which the Government have an interest is that granted by the Daily Mail. Parliament surely should be granted as much say in the Brexit process as the tabloid press. This amendment would give Parliament the power to strengthen the hand of the Government in their negotiations with the EU and I urge the House to support it.

[Lord Howarth of Newport]

My Lords, is it not quite clear that what the Government have to seek to do is restore self-government with a minimum of economic dislocation? I do not see any point in Parliament denying the Government freedom of manoeuvre as they seek to achieve that.

[Lord Campbell of Pittenweem (LD)]

My Lords, it is often said that imitation is the most sincere form of flattery, but I rather think, after our proceedings today, that repetition would not achieve the same objective. I have the advantage of following, yet again, the succinct appreciation of these issues by the noble Lord, Lord Monks, and wish to add only a few thoughts of my own. I will make a contemporary reference. The resignation of Amber Rudd from the Cabinet has not just had consequences for the Home Office but is generally regarded as having had very severe consequences for the balance of opinion within the Cabinet, which leads me to a point that has already been made by the noble Baroness. The requirement to state the terms of mandate might once and for all force the Cabinet to clearly indicate precisely what they are seeking to achieve. A mandate based on principles would not tie the hands of the Government. It would not put handcuffs on the Prime Minister or even, for that matter, Mr Davis. It would set out in a clear and unequivocal way precisely what the objectives were. That, as the noble Baroness has already indicated, would create an opportunity, emboldened by authority. It therefore cannot be argued on behalf of the Government that the passing of this amendment would in any way detract from their ability to carry out an effective negotiation.