European Union (Withdrawal) Bill

Debate between Lord Kerr of Kinlochard and Lord Faulks

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

[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?

[Lord Kerr of Kinlochard (CB)]

I shall speak briefly on two technical points. First, the noble Lord, Lord Green, asked whether we would have to pay a price if we chose to withdraw the Article 50 letter. Secondly, the noble Lord, Lord Faulks, asked whether we are confident that we could withdraw the Article 50 letter unilaterally. The answer to the noble Lord, Lord Green, is that given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Of course we could not be charged a political price if we withdrew the Article 50 letter during the period of the two years’ negotiation because we would never have left. We would have exactly the rights of a member because we would never have given them up. There would be no question of opt-outs or rebates being taken from us. Of course, the converse would apply if, having left the European Union, we decided that we wanted to come back. There would then be no chance of securing opt-outs or rebates. But, as a member in good standing, operating under the normal voting rules—the rebate is removable only by unanimity and I rather suspect we would not vote for its removal—there is no question that we would be paying a political price.

On the question of whether we would legally be able to withdraw the letter unilaterally, the noble Lord, Lord Faulks, who is a much better lawyer than I am—I am not a lawyer at all—said that that would be a matter for the ECJ. With respect, I do not think so. If the Prime Minister of the United Kingdom appeared in the European Council and said that, as a result of an election or a referendum, there had been a change of view in the United Kingdom and that we would like to stay in the European Union, there is absolutely no doubt what the European Council’s answer would be. It is on the record. The President of the Council, the President of the Commission, the President of the Parliament, the President of France and the Chancellor of Germany are all on record as saying that, although they respect our plan to leave, they would rather we changed our mind and stayed. There is absolutely no doubt that the European Council would say yes. It is conceivable that, three years later, a case might go to the European Court of Justice. Were the European Council correct and intra vires when it agreed that the British might take back their Article 50 letter, I have absolutely no doubt how the ECJ would rule in that case when it came up.

The second point I want to touch on is whether an extension of the two-year negotiating period would, if we sought it, be obtainable. This seems very relevant to the amendment we are considering. If the House of Commons were to choose to adopt the option—it is only an option in the amendment—of putting the deal to the people, it would require an extension. It would be impossible to do that before 29 March. We do not have a referendum law in our statute book; we would have to pass one. There would then have to be a campaign. Realistically, we would be looking at June or perhaps September. We would be looking for, say, a six-month extension.

Would we secure the necessary unanimity in the European Council for that extension? It is a matter of judgment. In my view, it would depend entirely on the reason we gave. If, for example, we said, “We’d like an extension to carry on negotiating. We’d like to send David Davis across for a few more months”, it is conceivable that we might not get the necessary unanimity. If, on the other hand, we were to tell 27 democracies that we needed an extension because the House of Commons had voted in a way that meant there had to be a referendum, or an election, there is no question but that we would get the necessary unanimity—in my view; that is only a judgment. The option in the amendment, and it is only an option, therefore seems reasonable, foreseeable and possible, and I shall vote for it.

Brexit: Revocability

Debate between Lord Kerr of Kinlochard and Lord Faulks

Wednesday 20th December 2017 Lords Chamber

[Lord Faulks (Con)]

My Lords—

[Lord Kerr of Kinlochard (CB)]

My Lords—

European Union (Notification of Withdrawal) Bill

Debate between Lord Kerr of Kinlochard and Lord Faulks

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

[Lord Kerr of Kinlochard (CB)]

My Lords, I disagree with the amendment because I see two defects in it, one of which was highlighted by the noble Lord, Lord Lexden, a moment ago. It purports to tie the hands of Parliament—which it should not do—unlike Amendment 3, which we will debate later today, which gives Parliament the certainty of having more options. The second defect is that the amendment does not address the increasing possibility that there will be no settlement, no agreement, and that we fall out.

What I do not like in this debate—I did not like it at Second Reading or in Committee—is the suggestion that in some way it would be illegitimate for the country to think again. There is a frog chorus behind the Minister. Every time he says, “It was decided”, the chorus behind him chants, “Koàx-koáx, decided, decided”. This is the lemming position. No matter how awful the deal turns out to be, no matter how unlike the promises of the leavers the eventual deal turns out to be, no matter how steep the cliff and stormy the sea, we must go over. There is no time to think again; there is no chance of turning back on any decision.

I find that strangely reminiscent of the Moscow I worked in in 1968, when Soviet foreign policy ran on the Brezhnev doctrine. The House will remember the Brezhnev doctrine, which said that once you have voted Communists in, you cannot vote Communists out. It was a very good doctrine for running central and eastern Europe. That seems to be the position of most of the government Back-Benches today.

I hope that the noble Lord, Lord Carlile of Berriew, will consult his new right honourable friend Mr David Davis, the Secretary of State for Exiting the European Union, and will come to the conclusion that Mr Davis was right when he said that if a democracy cannot think again, cannot change its mind, it is no longer a democracy. I rather agree.

[Lord Faulks (Con)]

My Lords, I do not think I am a frog or a lemming, but I was one of the Ministers at the Dispatch Box when we took the European Union Referendum Bill through this House and I think we should have regard to what we decided in Parliament in that Act. A number of amendments were tabled but, I say to the noble Lord, Lord Foulkes, there was no amendment about thresholds, no amendment to nuance the simple question that was posed, no amendment to say that we would only leave if we stayed within the single market, and, in particular, no amendment saying that there would be a second referendum. Why not? Was it because the alternatives were too complicated? There were only two outcomes of the referendum: either we remained or we left. Was it political negligence by parliamentarians not to table these amendments, or were they content with the Bill and its binary question?

We are having this debate contrary to what was generally considered to be the law, which was that it was the right of the Government, exercising the royal prerogative—

European Union Referendum Bill

Debate between Lord Kerr of Kinlochard and Lord Faulks

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

The noble Lord makes an entirely false point. The argument that I advanced in relation to an earlier group of amendments had nothing to do with mental capacity. In fact, I eschewed any reliance on mental capacity. I simply said that we draw an arbitrary line where adolescents are concerned—whether it is 16 or 18—and part of informing ourselves whether it is appropriate that they should vote involves looking at the development of the adolescent mind, without impugning in any way their capacity. I hope that I have made that position clear. As regards the capacity of those who are disfranchised by the current state of affairs, I do not at all wish to impugn their capacity or the level of their information or their ability to take a decision.

[Lord Kerr of Kinlochard (CB)]

I thank the noble Lord for giving way. I quite agree with him about the difficulties of drawing a line. Why draw a line, then, at 15 years?

[Lord Faulks]

Fifteen years is the line drawn by a previous Government, who thought that was a reasonable assessment of somebody who had a sufficient or recent connection with the country. Any line, whether it is 16 years or 14 years, is going to be arbitrary. Sympathetic though the Government are to the general tone of these amendments, for the reasons I have given I respectfully ask the noble Baroness to withdraw her amendment.

European Union Referendum Bill

Debate between Lord Kerr of Kinlochard and Lord Faulks

Wednesday 28th October 2015 Lords Chamber

[Lord Faulks]

Of course, it was not until 1969, in the Representation of the People Act, that the age was reduced from 21 to 18. It is not the case that young people have changed that radically—notwithstanding the speed of communication, about which we have heard so much.

[Lord Kerr of Kinlochard]

On that point, what conclusion would he draw? It was reduced from 21 to 18. What is the magic about 18? It used to be 21. What about driving licences? What about the age of consent? Surely there is a wide range of ages; there is no one particular age at which it can be said that everything has now moved from childhood to adulthood across the board. The question is: in this referendum, which is likely to be generational, why should we cut these young people out?

[Lord Faulks]

It is not a question of cutting people out, it is a question of deciding, on all the evidence, with careful consideration of what we know about what most young people of a certain age can or cannot do, and coming to a consistent view. The view has been taken that the age should be 18. Why should we change it simply to deal with this particular opportunity to vote?

--- Later in debate ---

[Lord Faulks]

It is very tempting to hypothesise in the face of that invitation, but I am afraid it is an invitation that I am going to decline.

[Lord Kerr of Kinlochard]

I congratulate the Minister on an absolutely brilliant speech, of the kind that I used to try to write—a mandarin speech. All the phrases were there: “a dangerous precedent”; “not the right time”, and “unforeseen consequences”. When all failed at the Treasury, I used to resort to, “beyond the ambit of the vote”, which nobody understood, not even me. It was brilliant, but one thing that I thought was missing was the answer to the point made by my noble friend Lord Hannay, that we were not trying to alter the arrangements for elections. We were talking only of a one-off referendum. That seems to be quite a strong point. Will the Minister touch on that?

[Lord Faulks]

Of course, the noble Lord will recall that we had a referendum relatively recently, in 2011, about a change in the voting system—to introduce the alternative vote—which was on the Westminster model. The argument was very much, “Well, this is inevitable” or “This is a slippery slope”, to use the expression of the noble Lord, Lord Higgins, and that, by accepting the validity of the argument on the European referendum, it must follow, as night follows day, that we would then proceed to change the Westminster franchise. By accepting that argument, we would be reversing into an inevitable change in the Westminster franchise. There might or might not be an argument for doing that, but that is an argument that ought to take place in the fullness of time, with all available evidence, once all the matters that we have gone into and wanted to consider were available.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Faulks

Monday 13th June 2011 Lords Chamber

[Lord Kerr of Kinlochard]

I look forward to hearing the noble Lord express that view in the debate on the reform of the House of Lords.

[Lord Faulks]

My Lords, the amendment seeks to remove the referendum lock from all potential transfers of powers and competences, with the exception of the euro, Schengen and defence, in the sense that it is defined in the proposed amendment. Noble Lords might have thought, after the amendment proposed by the noble Lord, Lord Williamson, and its 40 per cent threshold, that the principle of a referendum lock had received acceptance, albeit without much enthusiasm except for those who are constitutionally opposed to referenda as a whole. This amendment goes much further. It takes outside the lock all potential transfers included in the big five, as they have been identified by my noble friend Lord Howell, with the exceptions that I have already described. I shall mention just one, referred to by my noble friend Lord Goodhart, the European Public Prosecutor's Office.