European Union (Withdrawal) Bill

Lord Lamont of Lerwick Excerpts

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

[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.

--- Later in debate ---

[Lord Newby]

My Lords, I said that during the debate that was said. The truth is that, if you ask the people to have a vote, Parliament, having given them a mandate to have a vote, politically cannot come back and say, “Thanks very much, you’ve had your vote but, actually, we are going to ignore it”. Everybody knows that that is not realistic politics.

[Lord Lamont of Lerwick]

Does the noble Lord remember that in 2008, when other people were not advocating a referendum and there was no renegotiation, Nick Clegg put forward the idea that there should be what he called a real referendum—an in/out referendum? If that had come to pass, what would the Liberals have done if the people had voted no and wanted to leave, and there was no renegotiation? Would that have been binding or not?

[Lord Newby]

My Lords, that was in the completely different context of the Lisbon treaty. In previous debates in your Lordships’ House, a number of noble Lords have thrown at me what former leaders of my party have said. I would just ask the noble Lord, as we are talking about former leaders, whether he agrees with his former leader, Sir John Major, when he made a speech earlier this year and said, of this debate:

“Peers must ignore any noises off, and be guided by their intellect and their conscience”.


To revert to the point that I was attempting to make, on Brexit Parliament gave the initial decision to the people; it is in no position now to take a stand on parliamentary sovereignty on this issue. On Brexit, the horse has well and truly bolted.

It is sometimes argued that people are fed up with Brexit and want to leave it to Parliament and get on and implement it, but that is simply not the case. All recent polling shows that a majority of people now want to have a final say. A poll by YouGov earlier this month, for example, showed that by a majority of 44% to 36% there was support for such a vote. So this is not just the remoaners and, with figures like that, sadly, it is not just the Liberal Democrats. It is a view very widely shared, including by government supporters. In a recent poll of Conservative voters, by a majority of 43% to 34%, almost identical to that of the country as a whole, they said that they now wanted a vote on the issue.

So, what are the objections to the proposed amendment? First, it is argued that it is too soon to put such a provision into legislation. However, just look at the timetable. This Bill will receive Royal Assent sometime in June at the earliest. The Government believe that they will negotiate a withdrawal agreement by the end of October, a claim confirmed by the Secretary of State for Exiting the EU before a Commons Select Committee last week. If we take the Government at their word, this means that the approval resolution, provided for in the amendment which the House has just passed, could be brought before Parliament within 20 weeks of the Bill gaining Royal Assent and before any further legislative opportunity to provide for the referendum option had presented itself.

Far from being premature, this amendment is extremely urgent. It is argued by some members of your Lordships’ House that, if the Commons were to reject a Brexit deal, the correct next step should be a general election, rather than a referendum. However, this is a poor alternative. As last year’s general election showed, the issues which dominate a campaign at the start are sometimes very different from those which do so at the conclusion. At that election, polling showed that, in the last crucial days of the campaign, Brexit was supplanted by terrorism as the most important issue in many people’s minds. In any new election, health, education, jobs, housing, the qualities of the rival leaders, and issues which unexpectedly flare up in the campaign itself—as terrorism did in last year’s—would determine how many people voted. An election is, therefore, an extremely unsatisfactory mechanism for taking the people’s view on any single issue.

It is argued that a referendum would be too divisive but, in the circumstances of the Commons voting against a Brexit deal, to deny the people a final say would be even more divisive.