European Union (Notification of Withdrawal) Bill

Lord Judge Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Judge (CB)]

My Lords, the noble Lord, Lord Maclennan, cannot be here this evening, so it is my turn to speak—I think that I have moved up from 67 to 66 in the batting order. I have listened to some remarkable speeches and to views passionately held on both sides of the argument. I have reminded myself, having listened to seven and a half hours or thereabouts, that the issue raised here by the Bill is whether the Government may be given permission to take the first step to exiting Europe and to honouring the referendum vote. That is the issue. The House of Commons has said yes, and we should do the same. It is simply unacceptable for Parliament—for this House—not to honour its commitments. That is what happened when Parliament enacted the referendum Bill.

Of course the bedrock of our constitution is parliamentary sovereignty and of course the ultimate supremacy is in the House of Commons, which is our democracy in action. But because Parliament is sovereign, it may, if it wishes, curtail or restrict the operation of its sovereignty and, indeed, may delegate parts of its sovereignty. That is what happened when the European Communities Act 1972 was passed and that is what has happened, and will happen, whenever there is a referendum.

Because your Lordships have heard all the other arguments, I will give myself the chance to say something about referendums. I find them extremely worrying. The noble Lord, Lord Balfe, reminded us of Lord Attlee’s concern about the dangers of a plebiscite. The real danger of a referendum is that the views of the minority get buried, which is one of the complaints that I have heard on this side of the House. Many people are also concerned about the divisions that the referendum has given rise to—but that is what referendums do. It is no longer those people there in Parliament listening to each other, disagreeing and voting; it is every single citizen disagreeing with every other citizen, by 52% to 48%. That is the cause of the divisions of which we have heard so much and which will continue if we have another referendum.

I simply cannot accept the constitutional validity of a referendum, which is offered to the public only because political parties of one side or another are not too happy about whether they will give a show of party unity in the House of Commons if the issue is debated. The truth is that major parties divide on serious and significant constitutional issues. Why should they not? Is that not the whole point? It is utterly politically naive of me, but why should there not be a free vote on these things? I realise that I am speaking as an out-of-touch lawyer who does not know the political realities, but if that is why we have a referendum—it is why we had a referendum about going into the EU and why we had a referendum about whether we should come out of it—that is an extraordinary abdication by Parliament and representatives of the country of their own responsibilities. I make it clear that I regard referendums as extremely alarming in our constitutional arrangements.

So what do we have here? Parliament, manifesting its sovereignty over these matters, gave the country a referendum. The country voted on a clear understanding that each individual vote, however many millions there were, would be counted and that the wish of the majority would prevail. If the vote was for Brexit, the Government would get on with the negotiations—in other words, the process should start. The referendum did not include any questions about the circumstances in which Article 50 should or should not be engaged, nor did it suggest that conditions might be attached to the operation of Article 50. It asked a simple question. It did not even ask the voters why they were voting the way they were. All of us have ideas why people voted in ways that some of us find surprising and remarkable. All of these were individual people and will have had their own reasons for voting, but, stripped to essentials, the question was, “In or out?”, and we know the result.

For the purposes of the Bill—the starting of the process under Article 50—surely Parliament must accept the result without equivocation or delay. Surely Parliament cannot now seek to attach conditions to the exercise of the Article 50 power. However, that is not what the referendum was about. It would be an astonishing coup for those negotiating with us on behalf of the EU if we in Parliament sought to set out conditions in advance of the negotiations that we would or would not find acceptable. Frankly, if I were on the other side, I would welcome such conditions being imposed; I would greet them with hilarity and think that the British had once again played into our hands.

With all that said, there is one further consideration. At the end of the negotiation, we are going to know what it provides. There is going to be an election the year after the end of the negotiation and the Government will have to answer to the electorate. The Government have suggested that Parliament would be allowed to have a say about the negotiations. I would be astonished if it did not, but surely Parliament has not become so pusillanimous that, if the Government did not give it a chance to discuss and debate the terms and conditions that had been arrived at by the end of the negotiation process, Parliament would not take its own course and take the matter into its own hands. We do not have to wait. For now, though, on the issue of whether the Government should be allowed to pursue Article 50, in reality there can be no argument.