Brexit: Withdrawal Agreement and Political Declaration

Lord Lang of Monkton Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, like my noble friend Lord Hunt, I propose to confine my remarks to the subject of the referendum and what should happen now. I do not much like them, but I believe that a referendum can be a valid instrument of democracy, used rarely and with care, for really big issues on which the nation is divided. The Independent Commission on Referendums recently suggested that only issues of sovereignty and constitutional change should be covered and I agree. Referendums are always dangerous, however, because the Government of the day forfeit control. As we have seen, once triggered, they can move in unexpected directions with unpredictable results.

It is vital to recognise that referendum democracy and parliamentary democracy are different animals. They do not sit easily together. They have different blood groups, and to inject a referendum into our parliamentary processes, especially on complex and protracted matters of uncertain outcome, is indeed hazardous. Once embarked upon, it needs to be carried through with respect and consistency and, above all, it must be honoured. I recall that the Welsh referendum, not mentioned so far today, was passed with a majority of 0.3%, but getting a result is part of the main point of a referendum.

At the outset, the Brexit referendum had the almost unanimous support of the political parties. They agreed on the unconditional nature of the question asked and undertook to support and implement the outcome—promises ratified in the subsequent general election. Since then, many in Parliament, of all parties, have resiled from that commitment, and that is the cause of our present difficulties. Negotiations with an ill-disposed EU, hard enough to pursue with the backing of a united Parliament, have been sabotaged and frustrated by Parliament itself. We are gridlocked and self-indulgent, and it is not a proud day for parliamentary democracy. Parliament is now defying its own electorate. Worse than that, we are invalidating the referendum as a credible instrument of democracy for the future.

Of course, in the delivery of day-to-day decisions such as we take in this place, with our general debates and our legislative processes, changes of mind form a natural part of the continuum of politics, but a referendum is different. It is, as we all know, a one-off decision-making process, in which Parliament abrogates its responsibility in favour of the electorate to answer a specific, clear question. For us then to ignore that answer is, to put it mildly, unworthy. We have no right to put our widely varied interpretations on what the electorate really meant. To suggest instead that we should hold a second referendum, before the outcome of the first has been delivered, is to add insult to injury. “Wrong answer”, as they say in Europe, “Try again”. That has never been our kind of politics. As the SNP once so helpfully reminded us, a referendum is generational in nature. They are not buses. If you miss one you cannot say, “Don’t worry, there’ll be another along in a minute”.

Why hold another referendum now? I heard an MP say on television the other day that the electorate should be asked again “now that they know what Brexit looks like”. But we do not know what Brexit looks like. The deal as it stands could yet be changed in further negotiations, and anyway it has never been clearly explained to the electorate. It is changing day by day, as a blizzard of further amendments and other wizard wheezes are churned out in another place. What really matters is what the terms of our future relationship with the EU will be, about which we know nothing at all, except that the negotiations will be a nightmare. What would the question be? I have not yet seen or heard a single suggestion of a question that would be clear, balanced and unconditional, as the last one was. What would it settle? I do not believe it would settle anything, except to leave a legacy of bitterness. A second referendum cannot just wipe out what has already been decided. Why, then, is it proposed by so many? I see it as a subterfuge, one that dresses up as a virtue what is really an escape route through which its promoters are trying to wriggle out of the promises they made in 2016.

I voted remain in the referendum, and I respect the opinions expressed by others on this and other issues, but I believe that fulfilling the pledges we made then is a debt to the electorate that we must pay. That has a greater chance of closure than to leave an open wound. I see this as a matter of principle, and one that goes wider than Brexit. Our purpose now should be to honour the outcome of the referendum. That is not just the right thing to do; it is also, I venture, the moral thing to do. We should prepare now, urgently, to leave the EU, as the law provides, on 29 March—with or without a deal. Only then can the nation start to come together and our parliamentary democracy restore its self-respect.

Brexit: Statutory Instruments

Lord Lang of Monkton Excerpts

Thursday 10th January 2019 Lords Chamber

[Lord Callanan]

I thank the noble Lord for drawing that to my attention. I have more regard for his scrutiny powers than he himself does. I am sure he will give the matter his full consideration. These are essential pieces of legislation. We will need to introduce them before exit day.

[Lord Lang of Monkton (Con)]

My Lords, can my noble friend tell the House what proportion of these statutory instruments contain Henry VIII powers? Does he agree that any growth in the number of Henry VIII powers creates a dangerous power imbalance between the Executive and Parliament and therefore should be resisted?

[Lord Callanan]

We are endeavouring to keep the number containing Henry VIII powers to a minimum. I will write to the noble Lord with the detailed numbers.

European Union (Withdrawal) Bill

Lord Lang of Monkton Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, I welcome the opportunity to speak to this group of amendments and support those spoken to by the noble Lord, Lord Wilson of Dinton. I congratulate him on how he exposed the ramifications that reach so far into our constitution. It saves me the task of trying to tackle it.

It is a shame that the House is not more fully attended tonight. That is nothing to do with my personal egotism—quite the reverse—but this is such an important subject; I am very glad that we have reached it in the Bill, and it deserves the closest of attention. I speak in support of Amendments 71 and 72, as well as Amendments 76, 77 and others in this group. In so doing, I am keen to focus less on the Brexit-related provisions than on the constitutional implications of granting Ministers special powers to undertake the Bill’s purpose, while not limiting and containing such powers and enhancing scrutiny of the resultant secondary legislation.

The amendments themselves rein in Ministers’ powers from when they are appropriate to only when they are necessary, and are very straightforward. In the case of the amendment yet to be spoken to by my noble friend Lord Hailsham, “essential” is injected into the proceedings as well, giving a threefold choice to your Lordships. However, it is a transparent illustration of why the amendments are needed. “Appropriate” is so bland, broad and subjective as to be almost meaningless, as has been said, and it gives the Minister excessive influence and discretion. “Necessary”, by contrast, is more specific and requires justification—and I believe that the courts prefer to handle litigation over “necessary” than “appropriate”, for reasons one can understand. Clause 7 is stuffed with powers that need to be addressed in this way. It is time limited to some extent by subsection (8). I welcome that, and I welcome in passing the concession on sifting granted by my noble friend the Leader of the House in her Second Reading speech. But the clause is one that cries out for tighter control and closer scrutiny.

The Constitution Committee reported extensively on the Bill in three volumes—a unique event—so the Government have known for a whole year of the concern that we expressed on such matters and have heard it often repeated since. I am no longer a member of the committee, but I plead guilty to being partly responsible for the first of those three reports. Again unusually, that report was published before even the White Paper was produced, let alone the Bill itself, a procedure that I rather recommend to Select Committees. It makes life very much easier and gives room for one’s imagination to fly. However, the essence of the report was to recognise that the massive task of legislative retrieval would need special powers for Ministers. The Government repeated that in their White Paper and quoted our report in support, but they rather cynically omitted and ignored the vital qualification that we had stressed that such new powers had to be accompanied by tighter controls and the safeguards that we recommended—explanatory memorandums, certification of statutory instruments by Ministers, strengthened scrutiny procedures and so on. I heard the comment that the noble Lord, Lord Wilson, made about the Constitution Committee’s recommendation as an alternative to “appropriate”. I am glad to say, “Not me, guv”—I was off the committee by the time that report came out.

Our recommendations were largely ignored in the first report, such that when the Bill appeared last autumn the Constitution Committee, then under the capable hands of the noble Baroness, Lady Taylor of Bolton, felt obliged to point out that,

“the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”.

Since then, there has been some progress, but not very much and not nearly enough.

The amendments in this group are not just a matter of trivial semantics; they are the granular embodiment in microcosm of a fundamental principle—namely, that one pillar of our democracy is the balance of power between the Executive and Parliament. This Bill, if unamended, would tilt that balance quite heavily towards the Executive. To do that would be to degrade what will be an historic Act in due course and jeopardise the rights of Parliament. These amendments and others to come are not about Brexit itself; Brexit is important and the Bill is vital to help us to secure that. I want it to pass into law and soon. But the amendments are about something every bit as important —who is going to guard the constitution if not this House?

Ministers want their legislation to get through quickly and painlessly; officials are loyal to their Ministers and fancy a quiet life. The other place has an interest, but one that is often secondary to political obligations of Members, and the pressure on them from other events. I hope that my noble friend is listening to this debate and that the Government will at last respond to the case being put to them and respond not just in this clause but throughout the Bill, right up to and including Clause 17, perhaps by reference to changes that they have already agreed to the Sanctions and Anti-Money Laundering Bill. Debate in Committee would then proceed just a little faster.

It falls to us in this House to guard the gate on behalf of Parliament and democracy and to uphold the role of the constitution in protecting both. If the balance between Parliament and the Executive is lost, the rule of law and our freedoms are at risk. The time when we take back control of our laws is not the time to allow the corrosion of our law-making process.

[Lord Bilimoria (CB)]

My Lords, if I may just follow on from the noble Lord, Lord Lang, I often say that this House’s role is to be the guardian of the nation. To build on what the noble Lord, Lord Wilson, said, when we go back to the beginning of all this—the referendum—it was all about taking back control and sovereignty and not bypassing Parliament. What happened with Article 50? The Government tried to bypass Parliament. Now we have this withdrawal Bill, giving powers to make and amend law. As the noble Lord, Lord Wilson, said, there are over 100 Ministers, and it can be delegated to government departments—once again trying to bypass Parliament.

Under an earlier amendment, I quoted Dominic Grieve, a former Attorney-General, who recently said:

“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.


That is a former Attorney-General from the government party.

Then there was the Strathclyde review. Let us not forget what happened in 2015 when this House was criticised for flexing its political muscle. The review said that we should,

“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.

We were openly bullied and told, “Don’t you dare challenge a statutory instrument again”. In fact, I remember in that debate, the Government went so far as to say, “You are threatening the very existence of this House if you threaten us any more”. Now we have the potential for thousands and thousands of statutory instruments. Are we going to challenge every one of them and threaten our very existence every day? Do Henry VIII clauses give Governments the power of royal despots?

European Union (Notification of Withdrawal) Bill

Lord Lang of Monkton Excerpts

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

[Lord Grocott]

My noble friend is absolutely right but in this case the Act of Parliament that this House passed to establish the referendum included precisely the mechanism for the alternative vote election that would come into place should that referendum be carried.

[Lord Lang of Monkton (Con)]

My Lords, I am in no doubt that the referendum of 23 June was technically advisory but the Government of the day and the leaders of the campaigns had made it absolutely clear that the Government would implement its findings without qualification. It also featured in the governing party’s manifesto in the last general election.

[Lord Grocott]

I do not disagree with that at all. The debate when the referendum campaign was under way was clearly on the basis that this was a once-in-a-lifetime decision, and we need to acknowledge that as well.

My main points are in respect of the validity of the decision and whether it should be replaced with a second referendum. As the noble Lord, Lord Faulks, said, at the time of the referendum it was never said that there would be a second referendum. I hate to disagree with my noble friend Lord Foulkes—particularly not on matters relating to Scotland; I have never done so in the long parliamentary careers that we have shared—but I think he said, and he will no doubt intervene and I will be happy to give way if I am wrong, that the choice in the Scottish referendum was absolutely clear. However, it did not come over like that in the way that it was reported in England. There appeared to be a great lack of clarity about things such as the currency that would be used and whether an independent Scotland could reapply, or would successfully be able to reapply, to join the European Union. There is a whole host of uncertainties around all referendums, and I have never heard of one where there were no uncertainties or difficulties to address.

That brings me to the only really substantial point that I think has not been made so far: that somehow or other—this, according to its proponents, is the whole basis of having a second referendum—circumstances will change in a very fundamental way, making it absolutely essential that we again test the opinion of the British people. I cannot avoid a trip down memory lane at this point because this is not the first referendum on whether we should be a member of the European Union; it is the second. The first one was held in 1975 and the overwhelming decision was to remain in the European Union.

The Process for Triggering Article 50

Lord Lang of Monkton Excerpts

Tuesday 24th January 2017 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, your Lordships’ Constitution Committee expressed the view that it would be constitutionally appropriate that Parliament should be consulted before the triggering of Article 50. We therefore welcome the outcome of the Supreme Court judgment, even though we might not have chosen the route whereby the Government approached it. I congratulate my right honourable friend the Lord Advocate for Scotland on winning the Supreme Court’s unanimous rejection—including by two Scottish judges—of the Scottish Government’s attempt to extend their powers into reserved matters, even though the risk of that was engendered by somewhat unwise wording in the Scotland Act 2016. Are there other implications for the Sewel convention in the future handling of Brexit?

Although I believe the Government were right and it was their duty to pursue the appeal to obtain clarity on the position of the royal prerogative overall, can my noble friend confirm that the royal prerogative is unaffected by the judgment, except in so far as it affects the triggering of Article 50?

[Lord Bridges of Headley]

I thank my noble friend for the work of his committee and take this opportunity to thank all the European Select Committees in this House and the other committees that are making such a valuable contribution in scrutinising Brexit. Long may this continue.

It is very useful that the ruling gave such clarity on the position of the devolved Administrations. It is a 96-page ruling. Our lawyers are studying it in depth and detail. I will not go further at this juncture about the royal prerogative; nor, likewise, about the Sewel convention.

Article 50 (Constitution Committee Report)

Lord Lang of Monkton Excerpts

Tuesday 22nd November 2016 Lords Chamber

Moved by

[Lord Lang of Monkton]

That this House takes note of the Report from the Constitution Committee The Invoking of Article 50 (4th Report, HL Paper 44).

[Lord Lang of Monkton (Con)]

My Lords, as I understand it to be the will of the House that the next two Motions be debated together, I will speak to the Motion in my name, to be followed shortly by the noble Lord, Lord Boswell of Aynho, who will speak to his Motion. I welcome the opportunity that today’s debate brings the House to consider issues that arise from both your Lordships’ Constitution Committee’s report on the invoking of Article 50 and the European Union Committee’s report on parliamentary scrutiny of Brexit. I hope there may be benefit in debating these in tandem, as they are complementary in nature, and I look forward to the debate.

In our committee’s report, we did not feel qualified to offer a firm view on whether, as a matter of law, the Article 50 trigger should be dealt with by the royal prerogative or by involving Parliament, particularly since that very question was then before the High Court. Following the judgment handed down by the Divisional Court, the Government are now pursuing their case in the Supreme Court. The Government are of course fully entitled to appeal against the earlier judgment, and the Supreme Court is there to respond. However, there is all the difference in the world between appealing a court judgment and attacking the judges who delivered it, so I feel in no way inhibited from commenting on the disgraceful behaviour of certain quarters of the press and some Brexit campaigners, with their vicious vilification of three distinguished judges. The judges pronounced in good faith on a pure question of law. The attack on them was shameful. I find it strange, to say the least, that those who during the referendum campaigned most passionately to “take back control” should then choose to breach a core principle of our unwritten British constitution—namely, upholding the independence of the judiciary—and that they should do so by attacking judges who, in a British court, delivered a judgment that placed great emphasis on another core principle: the sovereignty of Parliament.

Our committee recognised, when considering the options for invoking Article 50, that there were persuasive arguments on both sides. But we concluded that, whatever the legal outcome, the constitutional position was clear. I quote from our report:

“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval … The Government should not trigger Article 50 without consulting Parliament”.

I just referred to the advisory referendum, and it is true that, technically, it was advisory. But it is also true that the Government gave repeated undertakings to implement the outcome, whatever it might be. That adds force to the need now for all sides to agree that the Brexit question was answered by the referendum result. It is now time for Parliament to honour the decision that it placed in the hands of the electorate and for Parliament to carry it through. To paraphrase Dicey, the will of the people is not known but by the laws of Parliament. I do not see that as dismissing the outcome of a referendum but rather as an injunction to Parliament to implement it. The fact that both the holding of the referendum and the implementing of the result featured in the governing party’s manifesto at the last election adds force, in this House, to the argument. Parliament therefore has a duty to see that the will of the people is carried out. We live, however, in a representative democracy, not a direct one. In the end it is for Parliament to decide, not for the Government alone. Whether referendums are a good thing is a discussion for another day.

Your Lordships will have noted that Scotland and Wales have successfully applied to intervene in the appeal to the Supreme Court, claiming in Scotland’s case that any Bill to trigger Article 50 would require the consent of the Scottish Parliament. We had indicated in our report that we did not think such a Bill would require legislative consent from the devolved legislatures. However, if a Bill is brought forward, further thought may need to be given to its effect in light of any appeal decision. We had also earlier railed against the use of declaratory legislation in the Scotland Act and against citing the Sewel convention as a convention in legislation because of the uncertainty that could generate. I shall not comment further in advance of the Supreme Court judgment except to say that regardless of the outcome, it will be essential for the Government to work closely with the devolved Administrations over Brexit, as they have undertaken to do, and for this Parliament to work with the devolved legislatures in providing appropriate scrutiny.

When the Supreme Court reaches its judgment, it may say that the royal prerogative is appropriate, or it may decide that Parliament must approve the triggering of Article 50. It may or may not decide the form of that approval, whether by legislation or by resolution; at present, we can only speculate. If by legislation, the Government may choose to present a short, tightly drawn Bill, or a longer one touching on aspects of the negotiation process. We do not know. Legislation would create greater certainty, particularly if it were to lead, as seems inevitable, to the subsequent displacement of existing primary legislation. We suggested in our report that it could be used to set some preconditions to the triggering of the article, as part of the UK’s “constitutional requirements”. However, the time for that has probably passed, and time is an important factor in the calculation.

It would certainly seem unwise to include in a Bill any terms that disclosed aspects of the Government’s negotiating position, thus weakening their hand in Brussels. A resolution, whether passed through the elected House alone or through both Houses, could prove a swifter process than a Bill, but its authority would be open to subsequent challenge. Separate Motions for a resolution would be needed in each House. They would be amendable and might therefore lead to different resolutions emerging. I believe it is essential that the invoking of Article 50, which triggers the implementation of the electorate’s decision, needs to be with the approval of both Houses of Parliament. Unlike a resolution, statute law trumps other forms of law, and that is what I support. I also understand that the Government have indicated that, if the earlier judgment is upheld, that is the course they are likely to take.

Whatever the outcome in the Supreme Court, and whatever form is used to invoke it, Article 50 need not affect the process and form of the subsequent negotiations. It starts the clock and that should be done in a clear-cut and concise way. Parliament’s involvement in the subsequent negotiations has already been underlined by my noble friend the Minister, and by others in government. The Constitution Committee, like many others in both Houses, stands ready to play its part in that process.

I now defer to my noble friend Lord Boswell of Aynho, whose Select Committee has already produced an admirable report on how Parliament should be more fully involved, and surely has a further vital role to play. I beg to move.

--- Later in debate ---

[Lord Lang of Monkton]

My Lords, there is another debate waiting to start and the hour is advancing so I shall have to be brief. Fortunately, and happily, the reply that my noble friend the Minister has just given to the debate was so comprehensive and thorough that my task is made very much easier. I thank him for that on behalf of everyone who has spoken in the debate, and for the energy and commitment that he has shown throughout the time he has occupied this position on behalf of this House’s interest in Brexit matters.

This has been a serious and well-informed debate and I thank all those from all parts of the House who have spoken, particularly the leading spokesman for the Liberal Democrats the noble Baroness, Lady Ludford—and, for the Labour Party, almost on her own until the very last minute, the noble Baroness, Lady Hayter. We heard particular expertise from the Cross Benches, which we almost take for granted but value very much indeed. I am grateful that each committee’s report was well received, not just by those members of the relevant committee who had helped to write it. We tried very hard to get them right. It is encouraging if the House thinks that we did.

As well as the many familiar points that were made during the debate, lots of individual, interesting, specific and new points were made that are novel and worth pursuing. That makes the debate more worth while than it might otherwise have been, and so does the fact that there was not complete unanimity on every single aspect of what was debated. There have been many variations on a theme but I think the central message that came through came from the speech of my noble friend Lord Boswell of Aynho right at the beginning, when he said that the Government must make a positive commitment to engaging with Parliament. That sums up a lot of the sentiment expressed in the course of the last few hours. I earnestly hope that today’s debate and the two reports may contribute to improving the handling of our nation’s approach to Brexit and to what follows.

Motion agreed.

Brexit: Article 50

Lord Lang of Monkton Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Bridges of Headley]

My Lords, I am sorry to say that I have nothing further to add on this matter.

[Lord Lang of Monkton (Con)]

My Lords, your Constitution Committee did indeed state in its report on the invoking of Article 50 that it was constitutionally appropriate that Parliament should be involved in the various stages of the negotiations, including the triggering of Article 50. I am sure that we would still stand by that view. However, we accept the need to make progress and to make it reasonably rapidly, removing uncertainty not least from the economy and the concerns of the business community, and the possible jeopardising of the future of that economy should matters be drawn out unduly. Does my noble friend agree that the triggering of Article 50 is essentially a matter of timing? It is therefore not an appropriate time for diving into the detailed study of the Government’s negotiating plans, which it might anyway be inappropriate to lay before Parliament in advance and thus declare their position.

However, if it is a matter of timing, would it not be sensible to consider bringing before both Houses of Parliament a short and tightly drawn Bill and seeking the agreement of the various parties involved to achieve rapid progress through the House on a fast-track basis? That would remove the uncertainty that is causing so much concern; proper consideration can then be given to the negotiations. Finally, since this is about the invoking of Article 50 and not about what the Daily Mail said about the judges, could we have a debate on the invoking of Article 50 and the reports of the Constitution Committee and the European Union Committee on that subject?

[Lord Bridges of Headley]

On the second point, that is a matter for the usual channels. On the first point, I would certainly say that it is a matter of process. The Prime Minister and the Government have made it clear that we are going to appeal this judgment. I very much respect and value the work that the committee of the noble Lord, Lord Lang, does. We have tried to allay uncertainty wherever we can, be it by our approach to repealing the European Communities Act or to European funding. We are certainly doing that and will continue to look for ways in which we can mitigate it elsewhere.